Pencious and Searle (No 3)

In the matter of *Pencious and Searle (No 3)*, the husband applied to the Federal Circuit and Family Court of Australia for the disqualification of the trial judge, Macmillan J, on the grounds of bias or apprehended bias. The husband contended that the judge’s decisions to grant the wife an adjournment of her application while refusing an adjournment of his application demonstrated such bias. Additionally, the husband sought to strike out the wife's written submissions for late service and her affidavit for irrelevance.

The primary legal issue before the court was whether the trial judge had exhibited bias or apprehended bias in her management of the proceedings, specifically concerning the granting and refusal of adjournment applications. A secondary issue concerned the husband's applications to strike out the wife's submissions and affidavit, which raised questions of procedural fairness and the relevance of evidence in family law proceedings.

Macmillan J dismissed the husband's application for disqualification, finding that he had failed to identify any specific action or statement by the judge that indicated a decision based on anything other than the factual and legal merits of the case. The judge reasoned that the management of adjournment requests, in itself, did not demonstrate bias. Furthermore, the husband's application to strike out the wife's written submissions was refused, as the court found no prejudice to the husband from the one-day delay in service, and that refusing the submissions would cause prejudice to the court. However, the wife's affidavit was struck out as it contained no reference to the husband, rendering it irrelevant to the proceedings.

The court ordered that the husband’s oral application seeking the disqualification of Justice Macmillan be dismissed.