Matthews and Norris (No 4)

In *Matthews & Norris (No. 4)* [2018] FamCA 1167, the Family Court of Australia considered an application by the mother seeking the disqualification of Justice Austin from further involvement in proceedings between herself and the father. The mother alleged actual and apprehended bias on the part of the judge.

The central legal issue before the court was whether a fair-minded lay observer might reasonably apprehend that Justice Austin might not bring an impartial mind to the resolution of the matter, applying the principles established in *Ebner v Official Trustee in Bankruptcy* (2000) 205 CLR 337. While the mother's claim of actual bias was rejected by the judge, the court was required to determine if the adverse comments made in previous judgments about the mother's reliability could lead to an apprehension of bias.

Justice Austin reasoned that while his rejection of the mother's evidence in prior proceedings did not establish actual bias, certain comments made in his judgments of 30 June 2017 and 27 October 2017 regarding the mother's reliability, veracity, and the logic of her position could reasonably lead a fair-minded lay observer to apprehend that he might not bring an impartial mind to future disputes. Consequently, the judge acceded to the mother's application for disqualification on the grounds of apprehended bias.

Justice Austin was disqualified from any further hearing in the proceedings. The outstanding applications, including those relating to costs, the mother's trustee in bankruptcy, and further applications by both the mother and father, were listed for hearing before Justice Cleary on 2 August 2018. Leave was granted for the mother and father to appear by telephone.