Mulholland and Mulholland

This decision concerned an appeal by the father, Mr Mulholland, against orders made by Cohen J in family law proceedings. The dispute revolved around allegations of apprehended bias on the part of the trial judge during the conduct of the proceedings. The appeal was heard by Coleman, Warnick and Thackray JJ.

The central legal issue before the appellate court was whether the trial judge's conduct, specifically certain exchanges with counsel during the cross-examination of the mother, demonstrated prejudgment or bias, thereby vitiating the proceedings. The court was required to determine if the judge's interventions indicated an inability to decide the case impartially, or if they were merely part of the judge's active case management and assessment of evidence.

The court applied the principles articulated in *Johnson v Johnson* and *Vakuta v Kelly* regarding judicial impartiality and the role of judges in modern litigation. It was held that judges are permitted to engage in dialogue with counsel, express tentative views, and actively manage cases, including directing lines of inquiry and assessing the weight of evidence. The court found that the transcript did not reveal that Cohen J had prejudged the issues. Instead, his Honour appeared to be controlling the trial, providing directions on appropriate lines of questioning, and indicating his preliminary assessment of the weight of certain matters, while leaving open the opportunity for counsel to persuade him otherwise. The court concluded that, in the circumstances, the judge's conduct did not create an irradicable impression of prejudgment.

The appeal was dismissed, with the court finding no error in the approach taken by the trial judge.