FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kapoor & Kapoor [2025] FedCFamC1A 156
Appeal from: Kapoor & Kapoor (No 2) [2025] FedCFamC2F 578 Appeal number(s): NAA 202 of 2025 File number(s): SYC 7947 of 2022 Judgment of: MCCLELLAND DCJ Date of judgment: 5 September 2025 Catchwords: FAMILY LAW – APPEAL – Application that the primary judge recuse themselves from the proceedings – Ostensible or apprehended bias – Primary judge attempted to engage the Independent Children’s Lawyer to encourage the parties to engage in settlement negotiations – Leave required to appeal – Medlow & Medlow (2016) FLC 93-692 two strand test – Decision of primary judge was not attended by sufficient doubt to warrant it being reconsidered – No substantial injustice found to result if leave were refused – Primary judge had not closed their mind – Appeal dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth).
Cases cited: Akhtar & Gaber (No. 2) [2021] FamCAFC 28
Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2
Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29
Cheng v Motor Yacht Sales Australia Pty Ltd (2022) 108 NSWLR 342; [2022] NSWCA 118
CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
CPJ16 v Minister for Home Affairs [2020] FCAFC 212
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fuller v Fletcher Building Ltd (2024) 76 VR 276; [2024] VSC 712
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150
Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1
Kingston & Field (No 2) (2020) FLC 93-986; [2020] FamCAFC 235
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
New South Wales v JR [2024] NSWCA 308
Ostap & Sidak [2024] FedCFamC1A 74
Saso & Saso (No 3) [2024] FedCFamC1A 113
Storry v Business Licensing Authority [2022] FCA 1321
U & U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 85 Date of last submission/s: 23 July 2025 Date of hearing: 23 July 2025 Place: Sydney Counsel for the Appellant: Ms Beck Solicitor for the Appellant: Fox & Staniland Lawyers Solicitor for the Respondent: Marsden Law Group Independent Children's Lawyer: Ms Gordon ORDERS
NAA 202 of…
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- AGLC
- Kapoor & Kapoor [2025] FedCFamC1A 156
- Case
- [2025] FedCFamC1A 156
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the primary judge had correctly applied the principles of apprehended bias and whether the primary judge had closed their mind to the evidence and submissions made during the proceedings. The appellant argued that the primary judge had erred in failing to correctly apply the principles of apprehended bias, particularly in relation to the primary judge's attempt to engage the Independent Children’s Lawyer to encourage the parties to engage in settlement negotiations. The court considered the principles of apprehended bias as articulated in New South Wales v JR [2024] NSWCA 308, which require an objective assessment of whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out their judicial functions with an impartial and unprejudiced mind.
The court found that the primary judge had not incorrectly applied the principles of apprehended bias. The court emphasised that expression of a tentative view by a judicial officer does not necessarily indicate a closed mind, and that a fair-minded layperson would not perceive the primary judge to have a closed mind incapable of alteration. The court held that the primary judge had not closed their mind to the evidence and submissions made during the proceedings, and that the decision was not attended by sufficient doubt to warrant reconsideration. The court also found that no substantial injustice would result if leave were refused.
The court dismissed the application for leave to appeal. The primary judge's decision was not attended by sufficient doubt to warrant reconsideration, and no substantial injustice would result if leave were refused. The appeal was dismissed, and the primary judge's decision was upheld.
Orders
Orders of the court
NAA 202 of 2025
SYC 7947 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS SABIA
Appellant
AND:
MR KAPOOR
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
5 SEPTEMBER 2025
THE COURT ORDERS THAT:
1. The appellant’s application for leave to appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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