Fennessy and Sanchez

In *Fennessy and Sanchez*, Collier J of the Family Court of Australia at Parramatta considered an application by the father (Mr Fennessy) seeking the disqualification of the judge from further participation in ongoing proceedings. The father's application was filed on 14 February 2007 and sought to injunct the judge from receiving submissions and closing arguments, and from making any further directions or orders in the trial, which had commenced in July 2005. The father also sought an interim order for time with his daughter, which he had previously applied for and which had been dismissed on appeal.

The legal issues before the court were whether the judge had exhibited actual bias or whether there was an apprehension of bias that would necessitate disqualification. The father contended that delays in the proceedings, particularly concerning the filing of submissions by the Independent Children's Lawyer, constituted a denial of procedural fairness and natural justice. He also argued that the judge's previous interim orders refusing him time with his daughter indicated a prejudgment of the final outcome. The father relied on the principles of actual bias and apprehended bias, as discussed in High Court decisions such as *MIMA & Jia* and *Ebner v The Official Trustee in Bankruptcy*.

Collier J applied the legal principles of actual and apprehended bias. The judge found no evidence of actual bias, concluding that the father had been afforded procedural fairness and natural justice, and that the delays, while regrettable, were not attributable to the judge's conduct in a manner that would suggest bias. Regarding apprehended bias, the judge applied the test of a fair-minded lay observer, stating that such an observer would consider the entirety of the proceedings, including the father's own conduct and his persistent agitation of previously resolved matters. The judge concluded that this observer would not reasonably apprehend that the judge could not bring an impartial mind to the final determination of the case.

Consequently, the father's application for disqualification was dismissed. The judge reserved the question of costs and made directions regarding the filing of further written submissions by the father, should he choose to do so.