Elton and Batey-Elton

In the Family Court of Australia at Brisbane, Justice O'Reilly considered an application by Mr Elton for her Honour to recuse herself from proceedings involving Mr Elton and Ms Batey-Elton. The application was supported by Mr Elton's Senior Counsel, but not by Ms Batey-Elton, who represented herself. The independent children's lawyer adopted a neutral stance.

The central legal issue before the court was whether there was a reasonable apprehension of bias on the part of Justice O'Reilly, such that her Honour ought to stand aside from the proceedings. This question arose from exchanges during the child proceedings and property proceedings, particularly concerning the tendering of an affidavit and the misrepresentation of a document's contents.

Justice O'Reilly reasoned that, applying the principles established in *Johnson v Johnson* and *Ebner v The Official Trustee in Bankruptcy*, a reasonable observer would impute certain views to her Honour based on the circumstances. These imputed views included suspicions about the husband's conduct, the potential for a trust to be a recent invention, and the possibility of the husband breaching a restraining order or disposing of assets. Her Honour concluded that these circumstances, particularly the exchange regarding the "if agreement" document where she felt she had been "seriously misled," crossed the line and created an apprehension of bias, necessitating her recusal.

Consequently, Justice O'Reilly declared that she would stand aside from the proceedings. The court ordered the discharge of her appointment as Judicial Case Manager and vacated certain future hearing dates in the child proceedings. Directions were made for applications concerning costs for the abortive hearing dates in the child proceedings to be listed. Justice O'Reilly also noted that trial dates for the property proceedings remained, but that a new Judicial Case Manager would be appointed to manage the proceedings.