DEMYAN & BEATTIE

In the Family Court of Australia, Justice Austin considered an oral application by the respondent mother, Ms Beattie, for his disqualification from proceedings concerning an Application-Contravention filed by the applicant father, Mr Demyan. The dispute centred on the father's application to have the mother found in contravention of existing parenting orders, with the mother objecting to Justice Austin hearing this application.

The primary legal issue before the court was whether a reasonable apprehension of bias existed, necessitating Justice Austin's disqualification. This arose from previous findings made by the judge in earlier substantive hearings that the mother was an unreliable witness. The court was required to determine if these prior findings, in the context of the contravention application where the mother's credibility regarding excuses for non-compliance would likely be central, could lead a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the determination.

Justice Austin applied the principles established by the High Court in *Ebner v The Official Trustee in Bankruptcy* and *Johnson v Johnson*. These authorities stipulate that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge could not impartially resolve the issues. While Justice Austin believed he could remain impartial, he acknowledged that the perception of bias is as crucial as its actuality. Given his prior findings of the mother's unreliability, which would likely be relevant to assessing any excuses she might offer for contravening orders, he concluded that a fair-minded observer could reasonably apprehend bias.

Consequently, Justice Austin acceded to the mother's application for disqualification. The Application-Contravention filed by the father was adjourned for further procedural directions before Justice Cleary.