G & B

The Family Court of Australia, in an extempore judgment delivered by Justice Young, considered an application by the husband seeking the disqualification of the judge from hearing interim financial and property matters. The dispute arose from the husband's apprehension that the judge might not bring an impartial mind to the resolution of issues due to a prior professional relationship between the judge and a chartered accountant, T, whose affidavit was initially relied upon by the wife. The wife had recently changed legal representation and sought to rely on an affidavit and report from another chartered accountant, F, whose evidence was substantially identical to T's.

The central legal issue before the court was whether a reasonable apprehension of judicial bias existed, such that the judge ought to disqualify himself from hearing the interim financial and property proceedings. This involved determining whether a fair-minded and informed observer would perceive a lack of impartiality given the judge's past professional association with T, and the subsequent substitution of T's evidence with that of F, whose report mirrored T's. The court was required to balance the principle that justice must not only be done but must be seen to be done, against the duty of judicial officers to sit and not encourage parties to seek disqualification without substantial grounds.

Justice Young reasoned that while the principle of apprehended bias requires consideration of the perception of impartiality, the evidence in the case had evolved. The wife's reliance had shifted from T to F, whose evidence was now before the court. The judge noted that T's affidavit would not be relied upon and would not be part of the evidence tested in cross-examination. Furthermore, the court found that the core information regarding the husband's beneficial interest in shares was also available from other sources, including public records and financial statements of the relevant company. Applying the principles from cases such as *Re JRL; ex parte CJL* and *Ebner v Official Trustee in Bankruptcy*, the judge concluded that he would not be embarrassed or conflicted and could fairly hear and conclude the case, finding no reasonable apprehension of bias.

Consequently, the court dismissed the husband's oral application for disqualification. The judge affirmed his ability to disregard T's affidavit and proceed to hear the applications impartially, emphasising that the determination of contentious issues would depend on the evidence presented and tested, including that of F and any other relevant evidence. The court ordered that the application for disqualification be dismissed and that the extempore reasons for judgment be transcribed and placed on the court file.