Leone & Cino (No 2)

This matter came before Johns J in the Family Court of Australia. The proceedings involved an application by the husband for the trial judge to disqualify herself due to a perceived lack of confidence stemming from a prior unfavourable ruling. Additionally, the husband sought to prohibit the Independent Children’s Lawyer (ICL) from relying solely on an existing family report and psychiatric assessment, and requested further reports and assessments. The ICL also applied for orders to secure payment of their costs by the parties, as the husband had failed to meet his obligations under the retainer agreement.

The court was required to determine whether the husband’s application for the judge’s disqualification met the legal test for apprehended bias. It also had to consider the husband’s applications concerning the evidence to be relied upon by the ICL and the necessity for further expert reports, particularly in light of previous unsuccessful attempts by the husband to obtain similar orders and the potential for undue delay. Finally, the court needed to address the ICL’s application for orders to ensure payment of their costs, given the husband’s non-compliance with the agreed retainer.

Johns J applied the test for apprehended bias as established in *Johnson & Johnson*, considering whether a fair-minded and informed observer would apprehend that the judge might not bring an impartial mind to the issues. The judge dismissed the husband’s application for disqualification, finding no basis for apprehended bias. Regarding the evidence and further reports, the court considered the potential for delay and hardship, noting that the husband’s previous attempts to obtain similar orders had been unsuccessful. Consequently, the applications for further reports and to restrict the ICL’s reliance on existing reports were dismissed. Interim orders were made to secure the current and ongoing funding for the ICL, acknowledging the parties' prior agreement to the retainer terms and the husband's consent to orders for payment of the ICL's costs.