Appeal from:; Jess & Jess and Ors [2018] FamCA 1179; Jess (Declaration and Recusal)

The Appeal Division of the Family Court of Australia heard an appeal concerning orders made by a primary judge in proceedings involving Mr Jess Jnr and Mr Ban (appellants) against Ms Jess and others (respondents). The dispute originated from property settlement proceedings initiated by Ms Jess following her separation from the late Mr Jess Snr. A central issue involved a Deed of Declaration of Trust (DODT) dated 28 February 2002, which Mr Jess Snr alleged transferred his interests in a unit trust (YUT) to Mr Jess Jnr. The appellants sought to appeal a declaration made by the primary judge regarding the execution date of the DODT and the dismissal of an application for the primary judge's disqualification.

The court was required to determine whether leave to appeal was necessary for both the declaration concerning the DODT and the dismissal of the disqualification application. It also had to consider whether the primary judge erred in her findings of fact regarding the DODT's execution date and whether the test for apprehended bias was correctly applied in the disqualification application. Furthermore, the court examined whether the appellants had waived their right to seek the primary judge's recusal.

The court held that leave to appeal was required for both the declaratory order and the dismissal of the disqualification application, as neither order finally determined the rights of the parties. Regarding the declaration, the court found that the primary judge's findings of fact were open on the evidence, supported by a detailed consideration of witness credit and having a sufficient evidentiary foundation. The court determined that the primary judge had misapplied the test for apprehended bias, focusing on her own agreement with adverse findings rather than what a fair-minded lay observer might reasonably apprehend. The court also found no substance in the argument that the appellants had waived their right to seek recusal, as the doctrine of waiver requires full awareness of the circumstances giving rise to apprehended bias, which was not demonstrated.

The court ordered that leave to appeal the dismissal of the disqualification application be granted, and the appeal from that order be allowed, setting aside the dismissal. The primary judge was disqualified from further hearing the proceedings, and the remaining matters were to be determined by another judge. Leave to appeal the declaratory order regarding the DODT was dismissed. The parties were ordered to file written submissions regarding costs.