ANDERSON & TAYBOR

This case involved an application by Ms Anderson (the mother) for the disqualification of Justice Collier of the Family Court of Australia from further hearing proceedings concerning her child with Mr Taybor (the father). The dispute originated from final orders made by Justice Collier in September 2009, which favoured the father regarding parental responsibility and the child's residence. The mother subsequently filed an application to vary these orders in October 2010, leading to a protracted legal process with multiple changes in legal representation for the mother. The application for disqualification was specifically pressed on the basis of apprehended bias.

The central legal issue before the Court was whether Justice Collier should disqualify himself due to apprehended bias, applying the test established in *Ebner & Official Trustee in Bankruptcy*. This test requires consideration of whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions before them. A secondary issue concerned the mother's potential waiver of her right to raise disqualification due to delay, particularly in light of the repeated indications from her previous legal representatives that they did not object to the judge continuing to hear the matter, and the timing of the current application. The Court also addressed the consequential issue of costs.

Justice Collier acknowledged the test for apprehended bias, which involves identifying the source of the apprehension and articulating the logical connection to a feared deviation from impartial decision-making. The mother's argument centred on the perception that, having made a decision based significantly on expert evidence in 2009, the judge might be unlikely to depart from that view in a rehearing. While noting the delay and the previous lack of objection from the mother's prior legal teams, the judge referred to *Strahan & Strahan* for the principle that delay is not necessarily fatal to a disqualification application. Ultimately, despite personal misgivings and the late stage of the application, Justice Collier concluded that the mother should be entitled to rely on the view of a fair-minded layperson that he might not bring an open mind to the matter, and therefore disqualified himself.

Consequently, Justice Collier ordered that the mother pay the costs thrown away by the Independent Children's Lawyer and the father. These costs were to be paid in specific sums, with a portion for the Independent Children's Lawyer to be paid directly and a larger sum for the father to be held in a controlled monies account pending assessment on a solicitor and client basis. The matter was adjourned for mention before another judge.