DBL & GJL

The appeal concerned an application by the wife (DBL) to reopen a property settlement order made in 1994. The wife asserted that a miscarriage of justice had occurred at the original hearing. The primary judge had summarily dismissed the wife's application under s79A of the Family Law Act 1975 (Cth) and made an order restraining her from filing further proceedings without leave. The Full Court of the Family Court of Australia was required to determine whether the primary judge erred in summarily dismissing the s79A application and whether the order restraining further proceedings was justified.

The Full Court also considered whether the primary judge had demonstrated bias by refusing to disqualify himself from hearing the matter. The wife's claim of bias was based on the fact that the primary judge had previously dismissed an earlier application by her concerning the same issues. The wife also raised complaints about the husband allegedly misrepresenting financial contributions and other general grievances about events since the original hearing.

The Full Court reasoned that the primary judge's role was not to conduct a full review of the original decision but to determine if the wife's s79A application had any merit. Having concluded that the application lacked merit, the summary dismissal was not an appealable error. The court applied the test for apprehended bias from *Johnson v Johnson*, considering whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the proceedings. The Full Court found that the primary judge's remarks about the wife's conduct and motivations did not indicate prejudice, and there was nothing to suggest he did not approach the proceedings with an impartial mind.

Given the significant passage of time since the original property order and the wife's numerous subsequent applications, the Full Court held that it was open to the primary judge to conclude that the wife was likely to continue pursuing a hopeless claim. Consequently, the order restraining the wife from filing further proceedings without leave was also found to be without error.