Kapoor & Kapoor

Case [2025] FedCFamC1A 156

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

FKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 19

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

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

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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Kapoor & Kapoor [2025] FedCFamC1A 156
Case
[2025] FedCFamC1A 156
Decision Date

CaseChat Overview and Summary

The appellant, Ms Sabia, sought leave to appeal a decision made by the primary judge in family law proceedings concerning the parenting of their child. The respondent, Mr Kapoor, opposed the application for leave to appeal. The appeal was dismissed by the court, which held that the primary judge's decision was not attended by sufficient doubt to warrant reconsideration and that no substantial injustice would result if leave were refused. The appeal process was governed by the principles set out in Medlow & Medlow (2016) FLC 93-692, which require consideration of whether the decision is sufficiently doubtful to warrant reconsideration and whether substantial injustice would result if leave were refused.

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

For reasons that follow, I decline the application for leave to appeal.BACKGROUND The more significant events alleged by the parties, some of which require determination in the trial, are the following:·The parties met in 2014 and began a long-distance relationship. ·In 2015, the father purchased a property at Suburb G, with his parents.·In April 2017, the mother relocated to Australia and on 17 April 2017, the parties commenced living together.·In 2018, the parties married.·In 2020, the child X (“the child”), was born.·In June 2020, the parents were admitted to E Organisation for sleep and settling issues with the child.·In July 2020, the father commenced Lexapro (an antidepressant).·In July 2020, the father completed the ‘Circle of Security’ parenting program.·In August 2020 the mother was admitted to E Organisation for further support.·Between October 2020 and January 2021, the mother alleges that the father discussed and threatened suicide.·On 8 April 2022, the parties separated and the father moved to City F. The child began spending regular time with the father (including daycare drop-offs and Sunday visits).·In May 2022, the father alleges the mother began attempting to restrict his time with the child.·In July 2022, the mother informed the father that time with the child was to be supervised.·In August 2022, the parties engaged in mediation.·On 11 November 2022, the mother filed an Initiating Application.·On 23 November 2022, the father filed a Response to Initiating Application.·On 8 December 2022, orders were made for the appointment of an Independent Children’s Lawyer (“ICL”).·On 22 December 2022, a Child Impact Report by Ms H noted that both parents raised concerns about the other’s mental health.·On 17 March 2023, Interim Parenting Orders were made, setting out a graduated schedule for the child’s time with the father.·On 24 August 2023, an order was made for the appointment of Dr C as a single expert.·In late 2023, a Divorce Order was made.·On 14 February 2024, Dr C’s single expert report was released.·On 1 October 2024, a disclosure was made to the Department of Communities and Justice that the child was kissed on the lips by her paternal grandfather, making her uncomfortable. The Department of Communities and Justice found insufficient evidence of sexual motivation.·On 18 March 2025, the mother swore an affidavit alleging sexual abuse by the father, coercive and controlling behaviour, financial control, and social isolation. ·On 10 May 2024, the current interim parenting Orders were made: the child spends time with the father on a Week 1/Week 2 basis (Week 1: Tuesday evening to Wednesday morning; Week 2: Friday after school to Monday morning). ·In mid 2024, the mother changed her name to Ms Sabia. ·On 23 April 2025, the ICL met with the child; the child expressed satisfaction with the current arrangement. PARTIES’ CONTENTIONS By way of broad summary in respect to the three issues said to have been prejudged by the primary judge, the parties contend as follows.Live With and Spend Time ArrangementsMother’s Submissions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to the principles adumbrated in Medlow & Medlow (2016) FLC 93-692 (“Medlow”), my consideration will focus on the two-strand test endorsed by the court in that matter: (1)Whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered; and (2)Whether substantial injustice would result if leave were refused, supposing the decision to be wrong.WAS THE PRIMARY JUDGE’S DECISION ATTENDED BY SUFFICIENT DOUBT TO WARRANT IT BEING RECONSIDEREDGround 1 - That the Primary Judge Erred in Failing to Correctly Apply the Established Principles in Respect to Apprehended Bias to the Facts The primary judge did not, in my view, incorrectly apply the established principes in respect to apprehended bias. Those principles were recently described by the NSW Court of Appeal in New South Wales v JR [2024] NSWCA 308 at [253]–[254] as follows:253. The test for apprehended bias is the “double might” test of whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. This test is objective. It does not require an assessment of the state of mind of the judge, as is necessary on an inquiry about actual bias: Michael Wilson at [33]. 254. The application of this test requires, first, the identification of what it is said might lead the decision-maker to decide a question other than on the merits of that question and, second, an articulation of the logical connection between the matter identified and the apprehended or feared deviation from the course of deciding the question other than on its merits: Ebner at [8], Michael Wilson at[32]-[33]. Only then can the reasonableness of the asserted apprehension of bias be assessed. This is sometimes referred to as the third step: Ebner at [8]; Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [59] (Gageler J); Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]; CNY17 v Minister for Immigration and Border Protection and Another (2019) 268 CLR 76; [2019] HCA 50 at [21] (Kiefel CJ and Gageler J). It is well established that expression of a tentative view by a judicial officer in the course of a hearing does not necessarily indicate that the judge has closed their mind (see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 610–611 [112]–[114] per Kirby and Crennan JJ; Johnson v Johnson (2000) 201 CLR 488 at 493 [13] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150 at [43] per Allsop CJ, Middleton and Katzmann JJ (“GlaxoSmithKline”)). Applying those authorities, the question for determination is not whether a trial judge was perceived to have an absence of opinion about a matter in dispute, but whether a fair minded layperson would have perceived that the trial judge had a “closed mind” that is incapable of alteration, despite evidence that may be tendered and submissions that may be made in respect to that issue or issues.

Ratio Decidendi

Legal Principle Established

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