Kapoor & Kapoor
[2025] FedCFamC1A 156
•5 September 2025
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 2025
SYC 7947 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym ‘Kapoor & Kapoor’ has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ
INTRODUCTION
The mother, Ms Sabia (formerly ‘Ms Kapoor’), seeks leave to appeal a decision made by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application that he recuse himself on the basis of ostensible or apprehended bias.
The apprehension of bias is said to be as a result of prejudgment arising from comments made by the primary judge in respect to three issues:
(1)The arrangements for the child to spend time with the father;
(2)Parental responsibility in respect to medical decision-making; and
(3)Whether there should be a change in the child’s name.
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 Arrangements
Mother’s Submissions
The mother seeks orders for the child to live with her and for her to continue as the child’s primary carer. She proposes that the child spend three or four nights per fortnight with the father (depending on where he lives) and half of the school holidays (mother’s Outline of Case Document).
The mother contends that the child has always lived primarily with her and she is the child’s primary attachment figure (mother’s Outline of Case Document). She contends that the child has exhibited distress and dysregulation following family time with the father.
The mother opposes any change to the child’s primary care. She contends that the father’s proposal for a change of residence and primary care, which was made late in proceedings, shows lack of insight on the part of the father part and is relevant to the assessment of his parenting capacity.
Father’s Submissions
The father seeks orders for a change in the child’s residence from the mother to the father. He contends that the child is well settled in his care and that the mother’s conduct is undermining his relationship with the child (father’s Case Outline Document). The father further contends that the mother presents the child to various doctors, alleging unsupported medical issues, which adversely impacts the child (father’s Case Outline Document).
The father denies all allegations of inappropriate conduct, including those alleged against the paternal grandfather. The father asserts that the mother’s claims have been made with a view to reducing his time with the child (father’s Case Outline Document).
In support of his position, the father refers to the single expert’s report of Dr C, who found no risk of harm in his care and supported shared care as an option to be considered by the Court (father’s Case Outline Document).
The father proposes a graduated increase in time, ultimately seeking a change of residence to his care. This includes the child transitioning to primary school in the local area where the father lives (father’s Case Outline Document).
ICL’s Submissions
The ICL notes the current parenting arrangements have been in place since May 2024. Those arrangements provide for the child to spend time with the father on the following graduated basis:
·Week 1—Tuesday evening to Wednesday morning; and
·Week 2—Friday after school to Monday morning.
The ICL advises that she has interviewed the child who expressed satisfaction with the current arrangement (ICL’s Case Outline Document).
The ICL contended that, while both parents are invested in the child’s wellbeing, the co-parenting relationship is dysfunctional, and the child’s best interests require careful balancing of safety and meaningful relationships with both parents (ICL’s Case Outline Document).
Parental Responsibility
Mother’s Submissions
The mother proposes joint decision-making responsibility for the child.
She argues that she has been diligent in managing the child’s medical needs, while the father has denied symptoms, undermined her with professionals, and belittled her efforts (mother’s Case Outline Document).
The mother contends that if the father were to have sole responsibility, there would be a risk to the child’s medical care and the mother’s voice would be excluded (mother’s Case Outline Document).
Father’s Submissions
The father agrees to joint parental responsibility, other than in respect to medical matters (father’s Case Outline Document).
He seeks sole parental responsibility in respect to medical matters, contending that the mother exaggerates medical and psychological issues impacting the child with a view to limiting his time with the child (father’s Case Outline Document).
ICL’s Submissions
The ICL reserves her position on long-term parental responsibility but notes that interim orders for joint parental responsibility are in place (ICL’s Case Outline Document). The ICL does not support the father’s proposal for sole responsibility for medical matters.
The ICL notes that the parties’ inability to cooperate may ultimately require sole responsibility to rest with one parent, but this should be determined after hearing all evidence (ICL’s Case Outline Document).
If sole responsibility is given to the mother, the ICL supports some restrictions on the mother’s ability to unilaterally relocate internationally (ICL’s Case Outline Document).
Whether the Child’s Name Should Be Changed
The parties’ outlines of argument do not address the issue of change of name however, it is requested in the mother’s Amended Application for Final Orders, and during the course of the trial the mother argued that the child’s name should be changed with a view to adding her maternal heritage to the child’s surname, not to remove the paternal surname.
The mother contends this would acknowledge both sides of the child’s heritage and address the child’s expressed discomfort at not sharing her mother’s surname.
SINGLE EXPERT REPORT OF DR C
It is certainly the case that the primary judge made several comments with a view to encouraging the parties to reach an agreement to resolve the totality of their dispute, including in respect of their competing claims for parenting and property orders. In respect to the parenting aspect of the parties’ dispute, the primary judge requested the ICL to prepare a draft order for the consideration of the parties (Transcript 5 May 2025, p.6 lines 25-30). The primary judge requested that the draft order be based on the recommendations of Dr C, the single expert who had been appointed by the Court to assist the Court in making orders that are in the best interests of the child. Accordingly, the relevant observations and recommendations of Dr C are pertinent to considering the conduct of the primary judge in suggesting that Dr C’s recommendations be the basis of settlement negotiations between the parties.
Presentation of the Parents
By way of broad summary, Dr C observed the parents to present as follows.
Dr C did not identify any mental health risks impacting either the mother or the father’s parenting capacity (Expert Report of Dr C dated 14 February 2024 at [11]). However, he observed that the mother’s emotional state, during his interview with her, was “anxiously dysregulated to a degree” (Expert Report of Dr C dated 14 February 2024 at [11]). He suggested that the mother could benefit from an assessment by a clinical psychologist or psychiatrist.
Dr C further observed that the mother’s presentation in the interview suggested a degree of emotional reactivity consistent with a person experiencing heightened levels of anxiety (Expert Report of Dr C dated 14 February 2024 at [37]).
Dr C stated that the mother demonstrated genuine concern for the child’s wellbeing and engaged enthusiastically in play and conversation with the child (Expert Report of Dr C dated 14 February 2024 at [29] and [43]). However, Dr C expressed that, due to the mother’s insistence in maintaining concerns for the child’s safety in the father’s care, it was possible that the mother’s anxiety may have unduly influenced her parenting decisions, leading to her limiting the father's involvement in the child’s life (Expert Report of Dr C dated 14 February 2024 at [73]).
While indicating that he found no risks related to the father’s mental health, Dr C recorded that the father acknowledged experiencing mild depression during university but was never clinically diagnosed (Expert Report of Dr C dated 14 February 2024 at [21]).
Dr C recorded that the father had been attending counselling sessions since 2019, and continued to attend counselling to manage stress which the father attributed to the parties’ separation (Expert Report of Dr C dated 14 February 2024 at [22] and [27]). It is noted that this report is consistent with the Child Impact Report dated 22 December 2022 which states at [21]; “[Mr Kapoor] agreed that he underwent a psychiatric evaluation in 2020, that he was diagnosed with depression, was prescribed medication for a period and has engaged with a psychologist since.”
Dr C described the father presenting as calm, affable, and generally child-focused and showed appropriate affection, safety awareness, and engagement during interactions with the child (Expert Report of Dr C dated 14 February 2024 at [13]-[14], [47] and [52]). He stated that the father demonstrated a willingness to accept critical feedback and showed a sincere commitment to parenting, demonstrating a strong desire to be involved in the child’s life (Expert Report of Dr C dated 14 February 2024 at [14]).
Issue of Family Violence
While it is ultimately a matter for the Court to determine during the course of the hearing, Dr C found no current risk of family violence affecting the child (Expert Report of Dr C dated 14 February 2024 at [8], [60] and [71]). Consistent with the submission of counsel for the mother, during the course of the appeal that this was “not a risk case,” Dr C stated that he could see no evidence of physical or psychological harm, abuse, or neglect from either parent (Expert Report of Dr C dated 14 February 2024 at [60]). In that respect, he noted historical allegations raised by the mother concerning the father and the paternal grandmother. Dr C accepted the father’s explanation that the paternal grandmother’s past disciplinary behaviour was related to her cultural upbringing and unlikely to recur in the future (Expert Report of Dr C dated 14 February 2024 at [61]–[62]). Dr C noted the father had previously taken protective action in respect to the mother’s concerns, including reporting his mother to police (Expert Report of Dr C dated 14 February 2024 at [62]).
Parental Capacity
Dr C opined that both parents demonstrated the capacity to meet the child’s emotional and intellectual needs (Expert Report of Dr C dated 14 February 2024 at [69]). Dr C noted that while both parents were individually capable, their capacity to meet the child’s needs would be enhanced if they were able to improve their cooperation (Expert Report of Dr C dated 14 February 2024 at [69]).
Recommendations on the Exercise of Parental Responsibility
Dr C recommended that orders be made for the parties to equally share parental responsibility (Expert Report of Dr C dated 14 February 2024 at [86]). As noted, he found both parents to be loving and affectionate, with no evidence of harm or risk to the child (Expert Report of Dr C dated 14 February 2024 at [60]). He stated that both parents demonstrated strong parenting capacity, emotional attunement, and motivation to be involved in all aspects of the child’s life (Expert Report of Dr C dated 14 February 2024 at [64]).
Recommendations in Respect to Live-With and Spend Time Arrangements
Dr C stated there was a realistic prospect for an eventual progression to equal time (Expert Report of Dr C dated 14 February 2024 at [87]). Dr C proposed that the court might consider a staged increase in the child’s time with the father, eventually progressing toward an equal time arrangement, as follows:
·Commencing immediately: Convert two after-school visits into one overnight stay (Tuesday–Wednesday).
·After 6 months: Add alternate weekend overnight care (Saturday–Sunday).
·After 1 year: If the father relocates within 20 minutes’ drive of the mother’s residence, extend the weekday block from Monday–Wednesday.
·After 2 years: Introduce week-about arrangements during school holidays.
Dr C explained his reasoning for that recommendation a being to allow the child to adjust gradually to longer separations from her mother and a graduated approach took account of the child’s age at each stage (Expert Report of Dr C dated 14 February 2024 at [68]).
Dr C opined that the father’s stated intentions and reported behaviour supported his desire to progress to equal time (Expert Report of Dr C dated 14 February 2024 at [87]).
The Mother’s Proposal for a Change in the Child’s Name
The mother’s proposal to change the child’s name was not considered by Dr C.
Primary Judge’s Reference to Dr C’s Report
In the context of a single expert report by an agreed expert, for reasons that I subsequently discuss, it was unremarkable for the primary judge, at an early stage in the proceedings, to suggest to the parties, that with the assistance of the ICL, they have regard to the recommendations of Dr C in exploring possible settlement options for their consideration.
That in no way suggests that findings and recommendation of Dr C, who was yet to be cross-examined, would be determinative of the outcome of the proceedings.
APPLICATION FOR LEAVE TO APPEAL AND GROUNDS OF APPEAL
The Notice of Appeal filed on 6 May 2025 appropriately sought leave to appeal, however, the question of leave was not addressed in the mother’s Summary of Argument. During the course of the appeal, counsel for the mother acknowledged that leave was nonetheless required: s 28(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
During the course of the appeal, in the absence of objection from the father or the ICL, who had both filed Submitting Notices, counsel for the mother was permitted to supplement her Summary of Argument by addressing the issue of leave. That argument essentially focussed on unnecessary litigation in the event that the mother successfully challenged the final parenting orders of the primary judge in an appeal subsequent to the making of final orders. This eventuality, she contended, would result in unnecessary delay and expense that outweighed the detriment of the loss of two days hearing that has already taken place in this matter.
In the event of leave being granted, the appellant pressed the following grounds of appeal:
(1)That the primary judge erred in failing to correctly apply the established principles in respect to apprehended bias to the facts and as a result refused the mother’s application that his Honour recuse himself from further hearing and determining the matter.
(2)That the primary judge erred in making a direction to the ICL at the conclusion of the first day of the hearing to provide a draft minute to parties and Court which included equal spend time between each party and the child and that decision making authority for medical matters should be shared, such a direction sounding in apprehended bias (pre-judgment).
(3)That the primary judge erred in his oral reasons for recusal in describing his instructions to the ICL as a “request” in circumstances where it was clear that they were directive or in the alternative, in failing to find that the request to the ICL indicates pre-judgment of those issues.
(4)That the decision of the primary judge is, in all of the circumstances, plainly wrong.
PRINCIPLES – LEAVE TO APPEAL
In Ostap & Sidak [2024] FedCFamC1A 74 at [3]–[4] (“Ostap & Sidak”), Aldridge J, in a typically succinct and pertinent analysis, summarised the relevant principles in respect to leave to appeal from a decision of a trial judge refusing to recuse themselves during the course of a trial as follows:
3. Although the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine appeals from a judge refusing to disqualify themselves per se (s 26(1)(h) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”)), leave to appeal is required (s 28(1)(c) of the FCFCOA Act). In the absence of a provision such as s 26(1)(h), a dissatisfied litigant is limited ordinarily to appealing the orders said to be affected by the reasonable apprehension of bias or actual bias, relying on those matters as the grounds. There may also have been a doubt as to whether such a refusal is an order against which an appeal lies, in the absence of the section.
4. It follows that in part heard matters where the outcome is yet unknown, that factor must play a part in determining whether leave should be granted.
In the absence of a contravener to assist in this appeal, it is neither necessary nor appropriate for me to further consider the doubt expressed by Aldridge J as to whether a ruling in respect to non-recusal, made during the course of a hearing is amenable to appeal. I would note, however, that the doubt expressed by his Honour is soundly based in authority. In that respect, it has been determined that where a ruling can be agitated in the context of any appeal brought from the orders which are eventually made to conclude the dispute between the parties, it is unlikely that the ruling is itself a judgment from which an appeal lies under s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth); Tree J in Saso & Saso (No 3) [2024] FedCFamC1A 113 at [46] referring to Yule v Junek (1978) 139 CLR 1 at 14, 18, 21 and 26; Commonwealth v Mullane (1961) 106 CLR 166 at 169.
In any event, the ability to seek redress in an appeal after the making of final orders is, as noted by Aldridge J in Ostap & Sidak, of considerable relevance in determining the question of leave to appeal.
Relevant to considering that issue is that granting leave to appeal from the dismissal of a recusal application made during the course of a trial, involves the balancing of two competing interests of justice. Firstly, that judicial decisions are, and are seen to be, unbiased so that the public may have confidence in the integrity of judicial decision making, and secondly, ensuring that “the due despatch of the workload of the courts is not bogged down by unwarranted claims of apprehension of bias arising out of unfavourable rulings on matters of practice or procedure or hurt feelings following robust exchanges.” FKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 19 at 31 [59].
In Ostap & Sidak, Aldridge J at [7] noted that, while the discretion is unfettered, the question as to whether leave should be granted is generally “exercised by looking to see whether the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave was refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).”
In Cheng v Motor Yacht Sales Australia Pty Ltd (2022) 108 NSWLR 342 at 345 [15], Bell CJ with whom Ward P and Basten AJA agreed, stated that establishing “a reasonably clear injustice” requires more than establishing that the asserted error underpinning the proposed appeal “goes beyond something that is merely arguable” (see Cheng v Motor Yacht Sales Australia Pty Ltd (2022) 108 NSWLR 342 at 345 [15] and the authorities referred to therein).
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 RECONSIDERED
Ground 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.
The question as to whether the judge had such a closed mind is to be objectively determined by the notional “fair minded lay observer.” Assistance in considering that issue is provided in the decision of the Full Court of the Federal Court of Australia in GlaxoSmithKline where at [36], Allsop CJ, Middleton and Katzmann JJ said:
… whether or not the suggested apprehension is reasonable must be considered in the context of ordinary judicial practice. A judge is not expected to sit in silence, Sphinx-like, while arguments are presented and will often form tentative opinions on matters in issue. Counsel are ordinarily assisted by hearing those opinions: Johnson v Johnson (2000) 201 CLR 568 at [13], [53] and [80]. Indeed, the exposure of those opinions is calculated to encourage a response from counsel. It is invariably an exhortation for assistance, even when it is expressed in apparently emphatic terms.
Further the Full Court in GlaxoSmithKline stated at [39] that “the fair-minded lay observer will also recognise that a professional judge is capable of departing from an earlier expressed opinion.” This is particularly relevant in the present case where the primary judge expressly stated that his mind was not closed to an outcome that was other than that recommended by Dr C (Transcript 5 May 2025 p.4 at lines 28-29).
Of further relevance is the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135 where Kiefel, Bell, Keane and Nettle JJ stated at 146 [23]:
How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker.
In this matter, the statutory context is also highly relevant. In this case, the hypothetical lay observer would be aware that proceedings relating to the welfare of a child in family courts in Australia are not strictly proceedings inter partes: Keane & Keane (2021) 62 Fam LR 190 at 204-205 [64]. In that context, a trial judge has a statutory obligation to make such orders as they deem to be in the best interests of the child. In U & U (2002) 211 CLR 238 (“U & U”), the High Court stated that in fulfilling that statutory responsibility the Court is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]–[171] agreed).
The High Court emphasised, however, that an essential precondition to a trial judge departing form the parties’ proposals was the requirement to afford the parties procedural fairness: U & U at [30]–[31]. In the present case, the conduct of the trial judge in suggesting to the parties that they consider an equal time arrangement was entirely appropriate and consistent with the requirements of procedural fairness. This included the conduct of the primary judge in raising the question of equal time with the mother when she was under cross-examination.
Additionally, as noted by the primary judge in his judgment dated 6 May 2025, in applying the principles adumbrated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the relevant statutory context includes the obligation of Federal Circuit and Family Court of Australia judges to conduct proceedings in accordance with the principles set out in s 69ZN of the Family Law Act 1975 (Cth) (“the Act”) (now s 102NE of the Act) including:
·The court is to consider the needs of the child concerned;
·The court is to actively direct, control and manage the conduct of the proceedings;
·The proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties; and
·The proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The primary judge’s endeavours to encourage the parties to explore settlement options was entirely consistent with those principles including, in particular, endeavouring to promote cooperative and child-focussed parenting by the parties
As a related issue the reference, by the primary judge, to s 95 of the Act is also highly relevant to the statutory context. That section requires the parties and their legal advisers to conduct themselves in a manner that is consistent with the overarching purpose including to resolve proceedings “as quickly, inexpensively and efficiently as possible” (s 95(1)(d) of the Act) and, relevantly, to achieve the following objectives:
(a)The just determination of all such proceedings;
(b)The efficient use of the judicial and administrative resources available for the purposes of courts exercising jurisdiction in such proceedings;
(c)The efficient disposal of the overall caseload of courts exercising jurisdiction in such proceedings;
(d)The disposal of all such proceedings in a timely manner; and
(e)The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
It is certainly the case that the primary judge actively attempted to engage the assistance of the ICL to encourage the parties to engage in settlement negotiations. An objective bystander would appreciate that such encouragement is very much part of modern judicial practice and recognises the considerable public benefit of matters being resolved by consent, rather than protracted litigation. The litigious path often results in personal emotional cost to the parties and presents a substantial financial impost to the parties and the public.
In that respect, it has long been accepted that the resolution of disputes by compromise, rather than litigation, is in the public interest: Jireh International Pty Ltd v Western Export Services Inc (No 2) [2011] NSWCA 294 (Macfarlan and Young JJA, Tobias AJA). This is particularly so in the case of disputes relating to children, in circumstances where neither party is contending that the outcome of the proceedings will present a risk to the child.
For these reasons I am satisfied that the primary judge correctly applied relevant principle in the application that he recuse himself from the proceedings. Accordingly, this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.
Ground 2 – That the Primary Judge Erred in Making a Direction to the ICL at the Conclusion of the First Day of the Hearing to Provide a Draft Minute to Parties
This ground of appeal is based on a false premise. The primary judge requested, rather than directed, the ICL to provide a minute to the parties as contended in this ground.
The relevant part of the hearing underpinning this ground is contained in the Transcript 5 May 2025 at p.51 lines 1 to 34 as follows:
HIS HONOUR: Very well. Now, Mr Iuliano (Counsel for the ICL), what I would like you to do – and I appreciate the ICL has, at the moment, taken a more what I will call reserved position. I would like you to circulate proposed final parenting orders that the ICL would support. In that regard, can I indicate that obviously I understand there are competing positions about long-term decision-making. It may be the case that the parties can agree on joint long-term decision-making. Maybe they can’t. There is a potential carve-out if it were to be long-term decision-making by the mother in the – in respect of medical and therapy. That seems to me to be one which should be joint, in any event.
In relation to issues such as time, there is obviously a point at which it needs to progress from four days to weekabout. [Dr C] has expressed some views. One can see why that should progress. It’s not likely that the court would impose residential constraints on a party. This court only does so in very rare occasions where it can be completely justified. It is not the practice of this court to make orders that people live within particular areas. The issue, then, in relation to overseas travel: by the time the child is 14 or 15 her own wishes would probably be ones that a court would facilitate, and it may or may not be that the ICL takes the view that up until that age the view expressed by [Dr C] might identify the issue of what should happen in respect of overseas travel, but I want the ICLs proposal in that regard and then the only other issue, as I understand it, between the parties – once it progresses to equal time it obviously ought to be equal – you know, at least shared holiday time.
But the only other issue, then, on which I want the ICLs benefit of input would be – and I appreciate you don’t have [Dr C’s] views – changing names. Changing names is something the court ordinarily is very reluctant to do once the child has a sense of their own identity. When the child is at an age where she can change her name, she will be able to do so. I’m not saying that that’s necessarily the position that should be applied in this case but I want the benefit of the ICLs proposals so that the parties can have their minds concentrated on what the realistic outcome is in respect of the potential orders likely or potentially to be made if the court were to accept the ICLs submissions. Could you circulate that before 10 o’clock tomorrow, please, Mr Iuliano.
On its face, the passage indicates that the primary judge requested that the ICL prepares a minute “that the ICL would support.” It was not framed as a direction, nor was any order issued containing such a direction.
The passage on p.51 of the Transcript 5 May 2025 should be read in the context of earlier discussions the primary judge had with the parties. Relevantly those discussions include:
(a)The primary judge noted, at Transcript 5 May 2025 p.3 lines 10-12, that the parties had the benefit of the report of Dr C which the primary judge stated, together with the views of the ICL, “would, obviously, be given some weight.” Significantly, the primary judge did not say that the views of Dr C as set out in his report would be determinative of the outcome of the case.
(b)The primary judge stated, at Transcript 5 May 2025 p.3 lines 17–21, “the court does expect the ICL to assist the parties trying to explore meaningful advancement of time towards equal time, as identified by [Dr C], if that is able to be done consensually – if it’s not, obviously the court will determine the parenting matter.” Significantly, the primary judge spoke of the advancement of time “towards” equal time “if that is able to be done consensually.” There was no suggestion of the primary judge mandating that outcome if it could not be achieved consensually.
(c)The primary judge expressed concern, at Transcript 5 May 2025 p.4, about the father changing the position he had advanced in his interview with Dr C such that he was seeking a change of residence of the child to live with himself rather than the mother. The primary judge postulated that such conduct on the part of the father may impact the Court’s assessment of his insight but, the primary judge stressed that concern was not a matter that he was “going to determine just yet” and encouraged the ICL to include that question in her discussion of possible settlement options with the parties. At no stage did the primary judge say that the issue had been determined, and it remains a live issue to be considered in the event the primary judge is required to adjudicate in respect to final spend time orders.
(d)Most significantly, at Transcript 5 May 2025 p.6 lines 25–42 the primary judge and counsel for the ICL had the following discussion:
HIS HONOUR:…What I propose to do at the moment, though, is to move to the ICL. Mr Iuliano, can you assist the parties seeking to have some discussion in relation to seeing, in the parenting matter, if one can advance what I will call the direction that was being identified by [Dr C] insofar as one or either party is seeking to advance that and the ICL is of the view that’s a position that is worth advancing? Are you happy to do so, Mr Iuliano?
MR IULIANO: I am, your Honour.
HIS HONOUR: Thank you. Could I just - - -
MR IULIANO: I’m happy to assist the parties in discussing a - - -
HIS HONOUR: Yes.
MR IULIANO: - - - a way forward, definitely.
HIS HONOUR: Thank you.
Viewed in the context of the continuing discussion between the parties, it is clear that the primary judge was making appropriate efforts to encourage the parties to achieve a resolution of the matter and requested the assistance of the ICL in doing so. The ICL indicated a preparedness to assist the primary judge in the manner so requested. The primary judge did not direct the ICL to prepare a specific minute and certainly did not direct the ICL to prepare a minute that was other than one that the ICL would support.
Accordingly, this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.
Ground 3 - That the Primary Judge Erred in in Describing his Instructions to the ICL as a “Request” in Circumstances where it was Clear that they were Directive or, in the Alternative, in Failing to Find that the Request to the ICL Indicates Pre-judgment of those Issues
For the reasons that I set out in respect to ground 2, the first proposition of ground 3 is without merit.
In respect to the second aspect of this proposed ground of appeal the primary judge was, in my opinion, not in error in determining that his request to the ICL did not amount to prejudgment of the issues of the spend time arrangements with the father, parental responsibility, or the mother’s proposal to change the child’s name.
In Kingston & Field (No 2) (2020) FLC 93-986 the Full Court dismissed an appeal contending apprehended bias on the part of the primary judge as a result of comments made during the course of the proceedings. In doing so, at 79,994–79,995 [22]–[25] the Full Court referred to the following authorities:
22. In Johnson v Johnson (2000) 201 CLR 488 (“Johnson”), the plurality said (at 493):
… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx…
Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
23. Kirby J said in Johnson (at 505):
… the expressions of preliminary and tentative views [by a judge] may sometimes appear to an outsider to indicate prejudgment. Although some [judges] may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.
(Footnote omitted)
24. In Antoun v The Queen (2006) 224 ALR 51 (“Antoun”), Kirby J said (at [27]):
… it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.
(Footnote omitted)
25. The “fair-minded lay observer”, whose objective opinions are the yardstick by which an allegation of apprehension of judicial bias is measured, is taken to be (Royal Guardian at [232]):
…a rational person who is neither complacent nor unduly sensitive or suspicious and…someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
Many of those same authorities were referenced and a similar approach was taken by the Full Court in Akhtar & Gaber (No. 2) [2021] FamCAFC 28 at [14] and [15] (“Akhtar”). In Akhtar, the Full Court distinguished the facts of that particular case from the facts considered by the High Court in Antounv The Queen (2006) 224 ALR 51 where the trial was judge was found to have indicated, from the outset, that the party’s application would fail: Akhtar at [15].
While it is the case that the primary judge made several comments encouraging the parties to consider settlement options, it was unremarkable that he did so on the basis of the report of Dr C which, on its face, appeared to be comprehensive and considered.
The request to the ICL to draft a minute, for the consideration of the parties, based on the recommendations of Dr C must be seen in the context where the primary judge specifically indicated to the parties that the views of Dr C would be material in the consideration of what orders were in the best interests of the children, but the primary judge did not state that Dr C’s views would be determinative (Transcript 5 May 2025 p.3 lines 10–12). In other words, it cannot be said that the primary judge had closed their mind to an outcome that was other than the outcome recommended in Dr C’s report.
Accordingly, this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.
Ground 4 - The Decision of the Primary Judge is, in all of the Circumstances, Plainly Wrong
For the reasons that I have set out in respect to the first three grounds of appeal, I am satisfied that the decision of the primary judge dated 6 May 2025 dismissing the application that he recuse himself was correct and this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.
I would add, in respect to this ground of appeal, that a judge should not disqualify himself or herself on the basis of bias or reasonable apprehension of bias unless substantial grounds are established Bienstein v Bienstein (2003) 195 ALR 225 at [36] and see also Fuller v Fletcher Building Ltd (2024) 76 VR 276; Storry v Business Licensing Authority [2022] FCA 1321; CPJ16 v Minister for Home Affairs [2020] FCAFC 212.
HAS THE APPELLANT ESTABLISHED SUBSTANTIAL INJUSTICE
In circumstances where I have determined that each of the proposed grounds of appeal lack sufficient prospects of success to justify leave to appeal being granted, it is unnecessary to consider the second aspect of the two-strand test referred to in Medlow.
For completeness, I can indicate, however, that I would not have found that the appellant would suffer substantial injustice by the rejection of her application for leave to appeal. As noted by Aldridge J in Ostap & Sidak, the appellant retains her right to rely upon the alleged apprehended bias as a potential ground of appeal that can be pursued, should she wish, subsequent to the making of final orders.
DISPOSITION
Accordingly, for the reasons set out in these reasons for judgement the appellants application for leave to appeal is dismissed.
There has been no application for an order for costs by the respondent or the ICL.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 5 September 2025
0
23
2