Prendergast & Parsons (No. 3)

In the Family Court of Australia at Melbourne, Mr Prendergast (the applicant husband) sought the disqualification of Justice Guest from hearing his matter against Ms Parsons (the respondent wife), with an Independent Children's Lawyer also involved. The husband's application was based on the assertion that the judge had already predetermined the issues before him, stemming from remarks made in a judgment delivered on 3 January 2007 and other comments made during that hearing.

The legal issue before the court was whether there was a reasonable apprehension that Justice Guest might not bring an impartial and unprejudiced mind to the resolution of the issues. This required the court to consider the husband's complaints, which included allegations of "predetermination comments" regarding his case, being referred to as a "vexatious litigant," and the perceived negative impact of the judge's remarks on his financial and welfare applications. The husband also raised concerns about the freezing of rental moneys and alleged misinterpretations of his financial contributions.

Justice Guest applied the well-established legal test for disqualification, which requires that a judge should not sit if, in all the circumstances, a party or the public might entertain a reasonable apprehension that the judge may not bring an impartial and unprejudiced mind to the resolution of the issues. The judge referred to authorities such as *Re Watson; Ex parte Armstrong* and *Johnson v Johnson*, emphasising that disqualification requires a firmly established reasonable apprehension of bias by reason of prejudgment, not merely an expectation that a judge might decide issues adversely to a party based on previous decisions. Justice Guest found that the husband's complaints were broad, sweeping assertions without particularity and that his counsel at the previous hearing had not raised any objection regarding unfair treatment. The judge concluded that the husband had misread or misunderstood the judgment and comments made, and that there was no substantial ground to contend that he was disqualified from hearing the case.

The husband's oral application for disqualification was dismissed. The court directed that a copy of the extempore judgment be transcribed, placed on the court file, and made available to the parties.