Gahen and Gahen (No. 3)

In the Family Court of Australia, Ms Gahen (the applicant mother) sought a stay of certain substantive parenting orders made on 20 September 2013, pending the determination of her appeal against those orders. Mr Gahen was the respondent father. The mother's primary concerns were that the child should only spend supervised time with the father and have no contact with a third party, Mr R. The mother also applied for the judge to recuse himself from hearing the stay application.

The court was required to determine two principal issues: first, whether the judge should recuse himself from hearing the stay application on the grounds of apprehended bias, and second, whether special circumstances existed to justify granting a stay of the substantive parenting orders pending appeal. The legal issues also encompassed the principles governing the grant of a stay, the consideration of the child's welfare, and the potential for an appeal to be rendered nugatory.

Regarding the recusal application, the judge applied the principle that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question. The mother relied on comments made by the judge in the substantive judgment, such as references to her "rank hypocrisy," "impulsive reaction," and "stubborn resistance." However, the judge found these comments, while made, were insufficient to invoke the apprehension of bias principle, as they related to the reasonableness of her beliefs rather than her honesty, which had not been challenged. On the substantive stay application, the judge applied common law principles requiring special circumstances to justify a stay, considering the prospects of the appeal, the balance of convenience, and the child's welfare. The court presumed the substantive decision to be correct and noted that residential changes should be limited. The judge found that refusing the stay would not render the appeal nugatory, as any potential harm could be rectified upon determination of the appeal. However, the judge considered that the child's interaction with Mr R could be suspended without undue harm, particularly as the child had withdrawn allegations against Mr R during a police interview, unlike allegations against the father.

The court ordered that the substantive order of 20 September 2013 be stayed, and in lieu thereof, the father was restrained from causing or allowing the child to be in the physical presence of, or to communicate with, Mr R, pending the discontinuance or determination of the mother's appeal. The mother's application for a reduction of time spent with the father was dismissed, and her application for recusal was also dismissed. No order was made as to costs.