Hearst and Hearst & Ors

In the matter of *Hearst and Hearst & Ors*, Coleman J of the Family Court of Australia considered an application for disqualification of the court from determining two further issues. The dispute arose following adverse comments made by the court regarding the credibility of the husband, Mr Hearst.

The primary legal issue before the court was whether it should disqualify itself from hearing and determining an outstanding costs application and an application made by a third party. This question hinged on whether the court's prior adverse findings concerning the husband's credibility would prevent a fair and impartial determination of these subsequent matters.

Coleman J determined that disqualification was warranted in relation to the costs application. The court reasoned that costs applications are inherently discretionary, and the prior assessment of the husband's credibility would likely influence the exercise of that discretion, thus raising concerns about impartiality. However, the court refused the disqualification application concerning the third-party application. This was because the determination of that application was not dependent on discretionary matters or an assessment of the husband's credibility, meaning the court could proceed to hear it without apprehended bias. Consequently, the court ordered that the pending applications concerning the costs of the substantive proceedings be adjourned to a new judge, while the third-party application could proceed.