Barakat & Farid (No 3)

In *Barakat & Farid (No 3)*, Justice Obradovic of the Federal Circuit and Family Court of Australia considered an application by the respondent father for the judge to recuse herself from proceedings on the grounds of apprehended bias. The applicant mother and the Independent Children’s Lawyer both sought the dismissal of this application. The recusal application was brought following earlier interim parenting, spousal maintenance, and property distribution orders made by the Court, against which the father had filed an unsuccessful appeal and a subsequently abandoned stay application.

The legal issues before the Court were 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 her, given the matters raised by the father. These matters included specific paragraphs from the Court's previous reasons for judgment and the fact that the judge had read the Notice of Appeal when determining the father's stay application. The Court was required to apply the well-established test for apprehended bias, as articulated in *Ebner v Official Trustee in Bankruptcy*.

Justice Obradovic applied the two-step test for apprehended bias. The first step involved identifying the matters that might lead a judge to decide a case other than on its merits, and the second step required articulating the logical connection between those matters and the feared deviation from impartial decision-making. The Court noted that the test is concerned with the possibility of bias, not probability, and does not require an inquiry into the judge's actual thought processes. The judge found that the matters relied upon by the father did not establish a logical connection sufficient to give rise to a reasonable apprehension of bias in the mind of a fair-minded lay observer.

Consequently, the Court dismissed the father's application for recusal. The proceedings were then listed for mention on 26 April 2021, with several outstanding interim applications also noted.