Spargo & Spargo - [2025] FedCFamC1A 174

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Spargo & Spargo [2025] FedCFamC1A 174

Appeal from: Spargo & Spargo [2025] FedCFamC2F 133

Appeal number: NAA 83 of 2025

File number: BRC 14042 of 2023

Judgment of: STRUM J

Date of judgment: 25 September 2025

Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL –Appeal against judgment dismissing recusal application – Where principles regarding denial procedural fairness not properly considered or applied – Where the test for apprehended bias in Ebner incorrectly applied – Where, cumulatively, a fair-minded lay observer, cognisant of all relevant facts, might reasonably apprehend the primary judge might not bring an impartial and unprejudiced mind to the resumed hearing of the part-heard trial – No relevant delay in bringing recusal application – Leave to appeal granted – Appeal allowed – Matter remitted to a judge other than the primary judge for retrial – Costs certificates ordered.

Legislation:
Evidence Act 1995 (Cth) ss 26, 41, 57, 135, 136

Family Law Act 1975 (Cth), pt VII, div 12A, ss 69ZN, 69ZP, 69ZQ, 69ZR, 69ZT, 69ZW, 69ZX

Federal Circuit and Family Court of Australia Act 2021 (Cth) r 13.09

Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Abano & Backus (No 2) [2025] FedCFamC1A 88; [2025] FedCFamC1A 88

Adacot & Sowle (2020) FLC ¶93–982; [2020] FamCAFC 215

AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425

Archeson & Begbie(No 2) (2024) FLC ¶94-176; [2024] FedCFamC1A 21

Barlett and Bartlett (1994) FLC ¶92-455; [1994] FamCA 7

Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343

Bhatnagar & Riju [2018] FamCAFC 144

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Charisteas & Charisteas (2021) 273 CLR 289; [2021] HCA 29

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Cusack & Cusack (No 3) [2024] FedCFamC1A 93

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111

Finch v Finch (2020) 60 Fam LR 342; [2020] FamCAFC 60

Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216

Gin v Hing (No 4) [2024] FedCFamC1A 247

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32

Henley and Bestari (2024) 68 Fam LR 284; [2024] FedCFamC1A 12

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huda & Huda and Laham (2018) FLC ¶93–837; [2018] FamCAFC 85

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Lockwood v Police (2010) 107 SASR 237; [2010] SASC 120

Medlow & Medlow (2016) FLC ¶93–692; [2016] FamCAFC 34

Michel v The Queen [2010] 1 WLR 879

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Moore (a pseudonym) v The King (2024) 419 ALR 169; [2024] HCA 30

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 219 ALR 373; [2005] FCAFC 138

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Sellers v Burns [2019] FamCAFC 111

Strahan v Strahan (Disqualification) (2009) FLC ¶93-414; [2009] FamCAFC 204

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Robert Megarry, “Temptations of the Bench” (1978) 16 Alberta Law Review 406

Number of paragraphs: 146

Date of hearing: 4 June 2025

Place: Melbourne

Counsel for the Appellant: Mr George

Solicitor for the Appellant: Trianon Law

The Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Newman

Solicitor for the Independent Children's Lawyer: Parker Family Law
ORDERS

NAA 83 of 2025
BRC 14042 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR SPARGO

Appellant

AND:
MS SPARGO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

STRUM J

DATE OF ORDER:

25 SEPTEMBER 2025

THE COURT ORDERS THAT:
1.Leave to appeal be granted.
2.The appeal be allowed.
3.The proceeding be remitted for retrial before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.A costs certificate be granted to the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by him in relation to the appeal.
5.A costs certificate be granted to the appellant pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by him in relation to the new trial ordered.
6.A costs certificate be granted to the respondent pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by her in relation to the new trial ordered.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spargo & Spargo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRUM J:
INTRODUCTION

By Notice of Appeal filed on 4 March 2025, and amended on 8 April 2025, the appellant father seeks leave (and, if successful) to appeal orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 27 February 2025 (“Orders”).
The Orders dismissed the appellant’s Application in a Proceeding filed on 29 January 2025, seeking that the primary judge recuse herself from further hearing the part-heard trial of the matter, on the grounds of denial of procedural fairness and apprehended bias (“recusal application”).
The recusal application was made and determined in the period during which the trial was adjourned part-heard, between 16 October 2024 and 13 March 2025. By reason of the Notice of Appeal, which was listed for hearing on 4 June 2025, the resumption of the part-heard trial was further adjourned.
At first instance, the respondent mother did not file a Response to Application in a Proceeding but filed written submissions effectively conceding the recusal application. The Independent Children's Lawyer neither opposed nor conceded the recusal application.
On appeal, the respondent and the Independent Children’s Lawyer each filed Submitting Notices, submitting to any orders the Court may make in the appellate proceeding.
At the hearing of the application for leave to appeal, the respondent appeared in person but the Independent Children’s Lawer, notwithstanding his Submitting Notice, was nevertheless represented by counsel.
By reason of their Submitting Notices, the respondent and the Independent Children's Lawyer do not contest the relief sought by the appellant in his Notice of Appeal, effectively, that the primary judge be disqualified from further hearing the part-heard trial and that the matter be remitted for trial before another judge of the Federal Circuit and Family Court of Australia (Division 2). See Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 13.09(1). Nevertheless, the Court itself must be satisfied of appealable error: Bhatnagar & Riju [2018] FamCAFC 144 at [3]–[7]. In that case, Murphy J (with whom Strickland and Ainslie-Wallace JJ agreed) continued at [8]–[9]:
8I am of the view that, respectfully, the concession that the appeal should succeed is properly made. Appealable error is amply demonstrated.
9 It is, in my view, unnecessary to traverse those errors in detail…
Notwithstanding the position taken by the respondent and the Independent Children’s Lawyer at first instance and on appeal, in Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352, Mason J said:
…It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. … Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
Similarly, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [19], the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said:
19Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
If leave to appeal be granted and the appeal allowed, the appellant seeks a re-exercise of power, rather than a remitter, in relation to his recusal application.
APPLICABLE STANDARD OF APPELLATE REVIEW
The appellant, in his Summary of Argument, does not address the applicable standard of appellate review, namely, whether it is the “correctness standard” to which the High Court referred in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442 at [15]–[17], or the standard applying to discretionary decisions to which it referred in House v The King (1936) 55 CLR 499 at 504–505.
In relation to the “correctness standard”, in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore at [15]–[17], the plurality of the High Court said:
15As explained below, an exercise of power under s 67 of the Civil Procedure Act to permanently stay proceedings on the ground that they are an abuse of process as any trial will be necessarily unfair or "'so unfairly and unjustifiably oppressive' as to constitute an abuse of process" is an evaluative but not a discretionary decision. Proceedings either are or are not capable of being the subject of a fair trial or are or are not so unfairly and unjustifiably oppressive as to constitute an abuse of process. Accordingly, the applicable standard of appellate review is not that specified in House v The King, but the "correctness standard" as explained in Warren v Coombes. Further, on the undisputed facts in the present case, the Diocese did not prove that there could be no fair trial (and did not contend otherwise that a trial would be so unfairly and unjustifiably oppressive as to constitute an abuse of process). Accordingly, the Diocese did not prove that the proceedings involved an abuse of process. The Court of Appeal's contrary conclusion was wrong. GLJ is entitled to have the proceedings heard and determined.
16The reasoning in House v The King applies to judicial decisions involving an exercise of discretion. It has been said that the concept of a "discretion" is "apt to create a legal category of indeterminate reference", but the presently relevant essential characteristic of a discretionary judicial decision is that it is a decision where more than one answer is legally open. In Norbis v Norbis, for example, the power of a court to make an order altering the interests of parties to a marriage was characterised as a judicial discretion because the decision called for "value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right". The line separating discretionary decisions (in which appellate review is confined to the House v The King standard) and other decisions (in which the "correctness standard" applies) was identified as that between questions lending "themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions" in which event "it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance", and questions to which there is but one legally permissible answer, even if that answer involves a value judgment.
17The extreme step of the grant of a permanent stay of proceedings demands recognition that the questions whether a trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process each admit of but one uniquely right answer. As Leeming JA observed in Moubarak by his tutor Coorey v Holt, while the "distinction between a trial being necessarily unfair and a trial which is so unfairly and unjustifiably oppressive as to constitute an abuse of process is no doubt a fine one", the distinction exists and was the ratio in Walton v Gardiner and the extant test for abuse of process when s 6A of the Limitation Act was enacted. Every case in which a fair trial cannot be held will also involve such unfairness to or oppression of a defendant as to constitute an abuse of process. But such unfairness to or oppression of a defendant as to constitute an abuse of process may exist even if a fair trial can be held. In both cases, while the answer to each question involves an evaluative process, the law tolerates but one correct answer.
(Footnotes omitted)
In Moore (a pseudonym) v The King (2024) 419 ALR 169 at [14]–[15], the plurality of the High Court said:
14Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a "House v The King" standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as "open" to his Honour.
15The basis for intervention identified in House v The King was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial "discretion". House v The King was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a "discretionary decision" in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed "some latitude as to the choice of the decision to be made". A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied "demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies".
(Footnotes omitted)
In relation to the standard applying to discretionary decisions, it is well settled that error of the type identified in House v The King at 504–505 must be established. There, the majority of the High Court said:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
In Strahan v Strahan (Disqualification) (2009) FLC ¶93-414 at [52]–[58], in an appeal from a dismissal of a recusal application, the Full Court of the Family Court (May, Boland and Thackray JJ) said:
52We first refer to the submissions of counsel for the husband that this is an appeal from a discretionary judgment, and therefore the wife must show an error of the kind identified by the High Court in House v R (1936) 55 CLR 499. Counsel submitted:
It is difficult to see how it can be properly argued that [the test outlined in Ebner v Official Trustee in Bankruptcy] does not involve at every level an exercise of his Honour's discretion. His Honour has to say what is reasonable for a fair minded person and with the greatest respect … it's ultimately, in our respectful submission, it is a clear case of an exercise of discretion as you might see. It's not a mathematical equation, two plus two equals four is not an application of discretionary judgment. It is difficult to perceive of a more clear case of a judge having to exercise his discretion in trying to decide the use of the word reasonable which is contained in lots of legislation but there are many cases that indicate it's difficult.
53In oral submissions, counsel for the wife argued that this is not an appeal from a discretionary decision. His submission was adopted by counsel for the Independent Children's Lawyer.
54The wife's counsel referred the court to the decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 where the majority (Gleeson CJ, Gaudron and Hayne JJ) stated:
19"Discretion" is a notion that "signifies a number of different legal concepts". In general terms, it refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.
(footnotes omitted)
55Counsel also referred to the judgment of Sholl J in Russo v Russo [1953] ALR 95, where his Honour said, at 62:
What is a discretionary determination? I have not found, in the cases cited in Halsbury's Laws of England (2nd ed ), Vol 31, p 535, note (r), any definition apt to distinguish such determinations from those non-discretionary decisions, to appeals from or reviews of which different considerations apply. At least the concept involves a considerable latitude of individual choice of a conclusion — a right in the tribunal, adhering to certain general principles, and taking into account relevant factors, to decide nevertheless according to its individual opinion. It involves further that the tribunal, instead of merely ascertaining and declaring existing rights, formulates for the first time, and declares, new rights according to its own opinion — the only pre-existing right having been a right to have the tribunal's decision exercised on the correct materials.
56Mr Whitington QC submitted that, applying those principles to this case, there was no discretionary decision involved in determining the disqualification application. Rather, it "involves the application of a rule or … a governing principle" to the facts. He went on to say:
… it might involve an element of judgment as to which side of the line of principle the facts come to rest but that is not a choice the court is driven judicially to one conclusion or the other by reference to the facts.
57Directions made by this court on 30 June 2009 allowed the parties to file further written submissions on this point. In those submissions, counsel for the husband submitted that whether or not the trial judge was exercising his discretion "is not determinative of the outcome of the appeal". Counsel referred to the decision in Fox v Percy (2003) 214 CLR 118, where Gleeson CJ, Gummow and Kirby JJ explained:
“20. Appeal is not, as such, a common law procedure. It is a creature of statute. In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, Mason J distinguished between (i) an appeal stricto sensu, where the issue is whether the judgment below was right on the material before the trial court; (ii) an appeal by rehearing on the evidence before the trial court; (iii) an appeal by way of rehearing on that evidence supplemented by such further evidence as the appellate court admits under statutory power to do so; (iv) an appeal by way of hearing de novo. There are different meanings to be attached to the word "rehearing". The distinction between an appeal by way of rehearing and a hearing de novo was further considered in Allesch v Maunz. Which of the meanings is that borne by the term "appeal", or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”
(footnotes omitted)
58No doubt it is correct that this point is not determinative of the appeal. However, for the reasons advanced by counsel for the wife we consider the judge's decision was not in the nature of a discretionary judgment. Accordingly, the principles applying to appeals of that nature do not apply in the instant case.
(Footnotes omitted)

Accordingly, I consider that the decision of the primary judge was not in the nature of a discretionary judgment and that the applicable standard of appellate review is the “correctness standard”. However, in circumstances where the appellant contends that the primary judge erred in law, which of the standards of appellate review applies may, to some extent, be a distinction without a difference. Even under the standard applying to discretionary decisions, the High Court, in House v The King, referred to where a judge “acts upon a wrong principle” and in Norbis v Norbis (1986) 161 CLR 513, quoting Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at p.540, referred to where the result is “plainly wrong”.
BACKGROUND
The trial of the proceeding, for parenting orders in relation to the two children of the appellant and the respondent, commenced on 2 October 2024 and continued on 3 and 16 October 2024. By the conclusion of the last of those days, both the appellant and the respondent had been cross-examined, and the further hearing of the trial was adjourned to enable a psychiatric assessment to be undertaken of respondent, and a new Family Report to be prepared. The further hearing of the part-heard trial was adjourned to resume on 13 March 2025.
On 29 January 2025, the appellant filed his recusal application, supported by an affidavit sworn by him on 28 January 2025 and filed together with that application. At the hearing of his recusal application, on 7 February 2025, the appellant further relied upon written submissions, drawn by counsel who appeared for him at trial, filed on 3 February 2025, which were supplemented by oral submissions.
The recusal application, founded on assertions of a denial of procedural fairness and apprehended bias, was based on seven grounds contained in the appellant’s written submissions at first instance, namely, that:
•the primary judge had departed from the role of a judge presiding over an adversarial trial, compromising her Honour's ability to evaluate the evidence objectively, “from a detached distance”;
•the primary judge had “cross-examined the [appellant] excessively and at length”;
•the primary judge had "entered the arena and remained” there for extended periods of time;
•the primary judge had “assumed the role of the [respondent’s] advocate” in her questioning of the appellant, and done so in an “unduly aggressive and intimidatory” tone and expression;
•the primary judge had excessively interrupted the cross-examination of the appellant;
•the primary judge had made pejorative comments toward the appellant; and
•the primary judge had made comments to the respondent, whilst she was giving evidence, “alluding to a mutual association of allegiance and secrecy”.
(Appeal Book pp.160–161.)
Annexed to the appellant’s written submissions at first instance, was a table of what was said to be 22 specific examples from the transcript, with page and line references, in support of those grounds (Appeal Book pp.162–164).
As referred to above, the respondent did not file a response to the appellant’s recusal application. However, in her written submissions filed on 5 February 2025, it was submitted, inter alia, that:
•the transcript of the first three days of the trial “provide[s] an ebb and flow to matters that seem both fair at times and potentially unfair” (Appeal Book p.169, paragraph 5.4);
•the transcript “shows clear evidence of an understanding of what is fair and reasonable and procedurally fair yet it also clearly shows matter that raise serious questions as to fairness and apprehended bias” (Appeal Book p.175, paragraph 5.9);
•whilst “[t]here are many incidents that on their own might not be able to categorise as unfair [sic] … a review of the transcripts potentially favours the [appellant’s] contentions that a recusal is grounded here [sic]” (Appeal Book p.175, paragraphs 5.10–5.11);
•there are “comments and matters throughout the transcripts that when viewed as a whole give rise to a genuine need to consider if the test for apprehended bias is met” (Appeal Book p.176, paragraph 5.14);
•“… it may be that there is enough evidence to support a positive recusal and it is submitted that a fair-minded layperson could indeed feel there has been unfairness to the father and also a lack of procedural fairness to the father and his legal team” (Appeal Book p.176, paragraph 5.16);
•it was “uncontentious on the evidence in the transcripts that there were many interruptions of cross-examination” (Appeal Book p.176, paragraph 5.17);
•it was open to find that, on a number of occasions, during such interruptions, the primary judge “engaged in the arena not just to clarify but to give opinion at cross-examination before withdrawing back having elicited the answers she wanted by direct cross” (sic) (Appeal Book p.176, paragraph 5.18);
•in the circumstances, the primary judge should recuse herself “on the basis at least a great many of the grounds alleged” (Appeal Book pp.176–177, paragraph 5.19);
•it was arguable that all of the appellant’s complaints were “supported in some way on the evidence” (Appeal Book p.177, paragraph 5.19.1); and
•in accordance with the applicable principles, “a recusal must occur” (Appeal Book p.177, paragraph 5.19.2).
FIRST INSTANCE JUDGMENT
In her reasons for judgment (“Reasons”), the primary judge described the respondent’s submissions as being “unclear” and said that they did not respond to the appellant’s submissions “in any meaningful way” and that, in fact, they “seem[ed] to add further complaints” (at [10]). Whilst, irrespective of the position taken by the respondent and the Independent Children’s Lawyer, the recusal application was a matter for the primary judge, that latter observation by her Honour might be said to have lent some weight, prima facie, to the appellant’s application, albeit that it was in no way determinative thereof.
Her Honour continued, saying that:
11The written submissions purport to assert the position of the “fair minded lay observer”. As I told [Mr D], that is not his role as Counsel for the Mother. As I commenced the hearing, I was unclear as to whether or not the Mother supports or opposes my recusal.
12After I heard oral submissions, [Mr D] confirmed that the Mother sought to leave the decision of my recusal up to me.
Insofar as the primary judge said, at least inferentially, that concurring with the appellant’s recusal application was not his role as counsel for the respondent, counsel had a duty to his client to advise her and to act on her instructions, as well as a duty to the Court, as an officer thereof.
At [18]–[19], the primary judge said:
18In circumstances where the Father asserts that I have overstepped my role as a Judge to such a degree that I must recuse myself, I consider it is appropriate to set out the bases of power I have when hearing and determining child-related proceedings under the Family Law Act.
19Division 12A of the Act sets out the principles I am required to follow when hearing child-related proceedings such as these.
At [20], over nearly three pages of her reasons, the primary judge recited the sections of the Family Law Act 1975 (Cth) (“Act”), as the Act then stood, that she considered to be “particularly relevant” to the appellant’s recusal application, namely, ss 69ZN, 69ZP, 69ZQ, 69ZR and 69ZX. Section 69ZN set out the principles for conducting child-related proceedings. Section 69ZQ provided that the powers under Division 12A could be exercised (inter alia) on the Court’s own initiative. Section 69ZQ set out the general duties of the Court in giving effect to the principles in s 69ZN. Section 69ZR conferred power on the Court to make determinations, findings and orders at any stage of the proceedings. Section 69ZW set out the Court’s general duties and powers relating to evidence.
At [21], the primary judge said that, in a parenting matter, regard was also required to be had to the provisions of the Evidence Act 1995 (Cth) (“Evidence Act”).
At [22]–[23], the primary judge referred to s 69ZT of the Act and to the sections of the Evidence Act that do apply to child-related proceedings, including ss 26 (court’s control over questioning of witnesses) and 41 (improper questions). Her Honour said that she considered those two sections to be “particularly relevant to these parenting proceedings and to the [appellant’s] current application”, as well as ss 135–136, and she then recited them (at [24]).
At [25], the primary judge referred to the two limbs of the appellant’s recusal application, namely, apprehended bias and denial of procedural fairness. It is to be observed, parenthetically, that both limbs are sub-sets of the right to, and the requirement for, natural justice to be accorded to litigants, and are inter-related. Both are challenges to the integrity of the administration of justice. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40]; Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at [117]; and Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10].
At [26]–[30], in relation to those two limbs, the primary judge referred to and cited from the decisions of the Full Court in Gin v Hing (No 4) [2024] FedCFamC1A 247 at [24]–[25] and Cusack & Cusack (No 3) [2024] FedCFamC1A 93 at [44] and those of the High Court in Ebner v The Official Trustee in Bankruptcy at [8], Johnson v Johnson (2000) 201 CLR 488 at [13] and Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd at [112].
Of the 22 examples of the behaviour of the primary judge said to support the recusal application, counsel for the appellant, at first instance, withdrew one example. Her Honour proceeded to consider the remaining examples within the rubric of the seven grounds contained in the appellant’s written submissions (at [35]–[156]).
In relation to certain of the examples relied upon by the appellant in support of his contention of a denial of procedural fairness by reason of what was submitted to be excessive and lengthy questioning by the primary judge, her Honour referred, inter alia, to s 69ZX(1)(e) of the Act and said that she was “entitled to ask questions of the parties and other witnesses” (at [83]).
In relation to apprehended bias, having considered the examples relied upon by the appellant, the primary judge returned to the decision of the High Court in Ebner v The Official Trustee in Bankruptcy and said as follows at [159]–[168]:
159The High Court makes clear that proving apprehension of bias is a two-step test. The test is outlined earlier in these Reasons.
160The first step “requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”.[1]
161The first step has been outlined through examples 1–22 in the Father’s submissions which I have dealt with above.
162The examples proffered on behalf of the Father (and indeed also set out in [Mr D’s] submissions) seem to ignore the powers I have as a Judge to hear this matter and control the proceedings.
[1] Ebner v The Official Trustee in Bankruptcy [2000] HCA 63, paragraph 8.
163 I therefore reject examples 1–22 as any indication of apprehended bias.
164 In dealing with step two of the test, the High Court says:
“There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.”
165The Father, in making this application, cannot just make complaints. He cannot merely pick a sentence or paragraph from the transcript that would support his application. This is not the test. He must show that the behaviour about which he complains shows that I have prejudged the matter against him. He does not do so.
166I raised with both Counsel for the Father and the Mother that neither of them had referred me to Ebner or the second step in the test.
167There was no evidence [Mr E] could point me to that showed I had prejudged the matter against the Father or made any decision in the matter.
168The test is an objective one, not a subjective one and must be applied in the eyes of a fair-minded lay observer.
(Emphasis added) (Footnotes omitted)
In relation to procedural fairness, the primary judge said at [169]–[174]:
169Within the Father’s application for recusal is the assertion that he has been denied procedural fairness.
170The Father’s assertions of my entry into the fray, which I have already considered earlier in these reasons, are complaints as to procedural fairness.
171The Father was afforded the opportunity to give evidence by way of affidavit. The Father was cross-examined. He was given the opportunity for re-examination.
172The Father, through his Counsel, was given the opportunity to test the Mother’s evidence.
173As the trial is part-heard, not all the evidence has fallen. Final submissions have not been made.
174There was nothing [Mr E] could point me to that showed the conduct of the matter was procedurally unfair to the Father.
The primary judge then turned to consider the appellant's delay in bringing the recusal application. Her Honour referred to Vakauta v Kelly (1989) 167 CLR 568 at [5] and Gin v Hing (No 4) at [27] and said at [175]–[179]:
175The Father made this Application on 29 January 2025 in circumstances where he had been legally represented in the lead up to, and in the conduct of, the first tranche of the trial on 2 October, 3 October and 16 October 2024.
176Nowhere in his Affidavit filed 29 January 2025 does the Father explain his delay in bringing the recusal application.
177As I said to [Mr E], now that the Father has made his application, the submission is that the fair-minded lay observer at the time would have said this is all very troublesome, and yet it did not occur to any of the three Counsel appearing at the trial at the time.
178The appropriate time to make the application for recusal was either on 3 October 2024 or at the very least 16 October 2024 when the matter came back before me.
179There is no explanation for the delay in bringing the application so close to when the trial is due to recommence in a few weeks’ time.
(Footnotes omitted)
The primary judge concluded at [183]–[185]:
183I have not made any decisions in the substantive parenting proceedings. The Father cannot point to any decision I have made that would lead the fair-minded lay observer to conclude that I had prejudged the matter.
184The Father has not been prevented from running his case. The Father has not been denied procedural fairness.
185There is no merit to any of the Father’s complaints and I dismiss his application.
LEAVE TO APPEAL
The appellant, by his amended Notice of Appeal and Summary of Argument, concedes that he requires leave to appeal from the Orders.
Section 28(1)(c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) relevantly provides that, in respect of judgments of the Federal Circuit and Family Court of Australia (Division 2), leave is required to appeal “a judgment or decision of a Judge or Magistrate exercising jurisdiction… rejecting an application that the Judge… disqualify himself or herself from further hearing a matter”.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused: Medlow & Medlow (2016) FLC ¶93–692 at [57].
In his amended Notice of Appeal, the appellant seeks leave to appeal on the basis that the primary judge erred in law in rejecting the recusal application by failing to appropriately determine whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter. The appellant submits, in his Summary of Argument, that “there is a realistic prospect of the decision being reversed if the appeal proceeds” (Medlow & Medlow at [63]), because the decision of the primary judge is premised on an incorrect application or understanding of the law relating to an application where apprehended bias is asserted.
In order to determine whether the decision is attended by sufficient doubt to warrant reconsideration, it is necessary to consider the merits of the appeal by reference to the grounds relied upon: Medlow & Medlow; Abano & Backus (No 2) [2025] FedCFamC1A 88 at [36].
GROUNDS OF APPEAL
The proposed amended grounds of appeal are as follows:
•The Appellant has been denied procedural fairness and the right to a fair trial.
•The primary judge erred in law by rejecting the Application that she disqualify herself from further hearing the matter:
2.1   the primary judge erred by failing to apply the proper test, in that she relied on the fact that she had “not made any decisions in the substantive parenting proceedings”. [Reasons para 183; AB]
2.2   the primary judge erred by relying on “the Father cannot point to any decision I have made that would lead the fair-minded observer to conclude that I have prejudged the matter.” [Reasons para 183; AB]
2.3   the primary judge erred in concluding that “The Father has not been denied procedural fairness” because “The Father has not been prevented from running his case”. [Reasons para 184; AB]
2.4   the trial judge erred in finding that the Father “must show that the behaviour about which he complains shows that I have prejudged the matter against him”. [Reasons para 165; AB]
2.5   the primary judge erred in her apparent reliance on her assertion that “There was no evidence (Counsel for the Father) could point me to that showed I had prejudged the matter against the father or made any decision in the matter.” [Reasons para 167; AB]
2.6   the primary judge erred in finding that there was no evidence that “showed the conduct of the matter was procedurally unfair to the Father.” [Reasons para 174; AB]
2.7   the primary judge erred in rejecting the Application relying on “I have not evaluated the evidence. I have made no findings. I have not offered a preliminary view. I have not issued any interim judgment.” [Reasons para 44; AB]
•The primary judge was wrong in law when asserting “The examples proffered on behalf of the Father (and indeed also set out in {Counsel for the Mother’s) submissions) seem to ignore the powers I have as a judge to hear this matter and control the proceedings.” [Reasons para 162; AB]
•The Primary judge has apparently misled herself (and is wrong in law) when asserting that the Application ought to have been made at some earlier time – when no such limitation is prescribed. [Reasons paras [175]–[181]; AB].
Ground 1
This ground, which contends that the appellant has been denied procedural fairness and the right to a fair trial, adds nothing to grounds 2 and 3 and shall, accordingly, be considered under those grounds.
Ground 2
This ground, which is the gravamen of the appeal, contends that the primary judge erred in law in her dismissal of each of the limbs of the recusal application, namely, for apprehended bias and denial of procedural fairness.

In relation to apprehended bias, it is contended that the primary judge:
(a)erred by failing to apply the proper test, in that her Honour said, and relied on the fact, that she had “not made any decisions in the substantive parenting proceedings” (Reasons, paragraph 183);
(b)erred in holding that the appellant could not “point to any decision I have made that would lead the fair-minded observer to conclude that I have prejudged the matter” (Reasons, paragraph 183);
(c)erred in holding that the appellant “must show that the behaviour about which he complains shows that I have prejudged the matter against him” (Reasons, paragraph 165);
(d)erred in holding that there was no evidence to which counsel for the appellant “could point me to that showed I had prejudged the matter against the father or made any decision in the matter” (Reasons, paragraph 167); and
(e)erred in dismissing the recusal application, by reason of the fact that, as her Honour said: “I have not evaluated the evidence. I have made no findings. I have not offered a preliminary view. I have not issued any interim judgment” (Reasons, paragraph 44).
(Emphasis added)
In relation to denial of procedural fairness, it is contended that the primary judge:
(a)erred in holding that the appellant had “not been denied procedural fairness” because he had “not been prevented from running his case” (Reasons, paragraph 184); and
(b)erred in holding that there was no evidence that “showed the conduct of the matter was procedurally unfair” to the appellant (Reasons, paragraph 174).
Ground 3
This ground, which contends that the primary judge erred in law in holding that the examples proffered on behalf of the appellant (and, indeed, largely conceded in the submissions of counsel for the respondent) “seem to ignore the powers I have as a judge to hear this matter and control the proceedings” (Reasons, paragraph 162).
Although set out under the rubric of apprehended bias, it appears that this observation was more directed to the assertion of denial of procedural fairness. See, for example, the primary judge’s extensive recital of, and references to, various provisions of Division 12A of Part VII of the Act and of the Evidence Act.
As with ground 1, this ground is interrelated with ground 2 and shall, accordingly, be considered under those grounds.
Apprehended bias and denial of procedural fairness
Given the inter-relationship between grounds 1, 2 and 3, it is appropriate that they be considered under the rubrics of apprehended bias and denial of procedural fairness respectively. Whilst there may be, and in this case there is submitted to be, overlap between these grounds of complaint, they are nevertheless distinct. In Huda & Huda and Laham (2018) FLC ¶93–837 at [51], the plurality of the Full Court said:
51Further, the passage quoted suggests, respectfully, confusion on the part of his Honour between, on the one hand, an assertion of ostensible bias by reference to the nature and the extent of questioning and, on the other hand, procedural unfairness effected by the same. As pointed out in Royal Guardian, the High Court in RPS v The Queen said:
“But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge.”
(Footnotes omitted)
Apprehended Bias
The primary judge, in her Reasons, correctly identified the leading High Court authorities of Johnson v Johnson and Ebner v The Official Trustee in Bankruptcy; however, for the reasons which follow, I consider that her Honour misunderstood the relevant principles therein and, therefore, erred in law in her dismissal of the appellant’s recusal application on the basis of apprehended bias.
In Ebner v The Official Trustee in Bankruptcy, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at [6]–[8]:
6Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
7The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
8The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
(Emphasis added) (Footnotes omitted)
The test in Ebner v The Official Trustee in Bankruptcy at [6]–[8] has come to be referred to as the “double might” test. In Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111 at [22], the plurality of the Full Court said:
22 The “double might” test set out in Ebner at [8] presents two steps, requiring:
(a)“[T]he identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits”; and
(b)“[A]n articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.”.
In Johnson v Johnson at [12], the plurality of the High Court said:
12…The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial"
(Footnote omitted)
In Charisteas & Charisteas (2021) 273 CLR 289 at [15], the plurality of the High Court referred to where “[a] fair‑minded lay observer, understanding that ordinary and most basic of judicial practice, would reasonably apprehend that the trial judge might not bring an impartial mind to the resolution of the questions his Honour was required to decide”. Their Honours continued:
18… The apprehension of bias principle is so important to perceptions of independence and impartiality "that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined" (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.
…
21... The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self‑appreciation of this kind.
(Footnotes omitted)
Similarly, in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148 at [46], Kiefel CJ and Gageler J said, in relation to the characteristics to be attributed to the hypothetical fair-minded lay observer, that the observer “is to be placed in a contemporary setting. Uncritical attitudes of the past cannot be assumed to be those of the present”. Their Honours continued at [47]-[49]:
47Being "fair-minded", the observer "is neither complacent nor unduly sensitive or suspicious". Yet the observer is cognisant of "human frailty" and is all too aware of the reality that the judge is human. The observer understands that "information [as well as attitudes] consciously and conscientiously discarded might still sometimes have a subconscious effect on even the most professional of decision-making".
48Being "lay", the observer "is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge". Though the observer may be taken to understand that the judge, by reason of professional training and experience and fidelity to the judicial oath or affirmation, will have a greater capacity than most to discard "the irrelevant, the immaterial and the prejudicial" and to discharge the judicial function uninfluenced by past professional relationships, "the public perception of the judiciary is not advanced by attributing to the ... observer a knowledge of the law and an awareness of the judicial process that ordinary experience suggests not to be the case". This indicates that the observer will see the person who is currently a judge as the person who was formerly an advocate and may be less inclined to dissociate the advocate from the cause advocated than would someone steeped in the adversary process with a cultivated sense of the ethics of the legal profession and the profundity of the judicial oath.
49Nor is the observer so abstracted and dispassionate as to be insensitive to the impression that the circumstances in issue might reasonably create in the mind of the actual party who is asserting an apprehension of bias.
(Footnotes omitted)
In relation to the two steps prescribed by the High Court in Ebner v The Official Trustee in Bankruptcy at [8], the Full Court in Archeson & Begbie(No 2) (2024) FLC ¶94-176 said:
72Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
73The question is to be answered having regard to the legal, statutory and factual contexts in which the decision is made. The hypothetical observer is taken to know the nature of the decision, the context in which it was made, and the circumstances leading to it.
74A finding of apprehended bias is not to be reached lightly. To the contrary it must be “firmly established”. There must be “strong grounds for inferring the existence of a reasonable suspicion”.
75The relevant reasonable apprehension is not that of, and is not determined by, the subjective perceptions of any party to the proceedings, although the impression that might reasonably be made on the parties by the facts is not completely ignored. It is an objective test. One of possibility, not probability.
(Footnotes omitted)
In holding, as the primary judge did, that:
·the appellant had not established, on the behaviour about which he complained, that her Honour had prejudged the matter (Reasons, at 165);
·there was nothing to which her Honour was pointed which “she [had] prejudged” the matter against the appellant or made any decision in the matter (Reasons, at 167);
·she had “not made any decisions in the substantive parenting proceedings” (Reasons, at 183); and
·the appellant could not point to any decision she had made “that would lead the fair-minded observer to conclude that [her Honour] had prejudged the matter” (Reasons, at 183) –
her Honour erred in law. Although her Honour referred at [27] of her Reasons to the “double might” test, she failed to apply it.
Both at first instance and on appeal, counsel for the appellant pointed to many examples in the transcript which, it was submitted, jointly or severally, might cause a fair-minded lay observer reasonably to apprehend that the primary judge might not bring an impartial mind to the resolution of the question that her Honour was required to decide. There are too many to cite and only some will suffice, albeit that, even with only those cited, these reasons for judgment will be lengthier than would ordinarily be preferable.
In the course of cross-examination of the respondent relating to an alleged breach of an apprehended violence order by the father, whilst she was dropping the eldest child at school, the primary judge directed the respondent to leave the court and engaged in the following exchange with counsel for the respondent:
HER HONOUR:   Was there a protection order in place at this time?
[MR E]:   Yes, there was.
HER HONOUR:   Did the mother describe this incident as a confrontation with the father? Did she use the word confrontation with the father?
[MR E]:   I don’t think she used that word. No.
HER HONOUR:   Your question was improper because you said that she could have avoided this confrontation. Right. Now, I’m not wanting to interfere with your cross-examination, it’s also why I sent the witness out of the room, but ultimately, the video speaks for itself.
[MR E]:   Yes.
HER HONOUR:   I don’t – I’m not going to accept a submission from you that – sorry. I withdraw that.
[MR E]:   Yes.
HER HONOUR:   You have put to her properly that she could have just walked around.
[MR E]:   Yes.
HER HONOUR:   And she said well, no, I’m taking my daughter to school.
[MR E]:   Yes.
HER HONOUR:   So I don’t know what more you want about this incident, noting the time restraints, noting the really serious allegations in this matter, I just don’t know that you need to be any longer on this. Because you’ve put to her, she could have avoided, she said yes, I could have done many things.
[MR E]:   Yes.
HER HONOUR:   But she doesn’t accept, well, you didn’t put to her it was a confrontation, so your question to that extent is unfair.
[MR E]:   I accept that. Thank you. Yes.
HER HONOUR:   All right. So is that the end of this topic? Sorry.
[MR E]:   It is.
HER HONOUR:   Of this questioning on this particular incident, or did you want more? Because I will bring her back in.
[MR E]:   No. Can I ask just another couple of questions and that’s it.
HER HONOUR:   Certainly. But then just can you please bear in mind that ultimately it’s going to be a matter of submissions to me, but you got a concession from her, she could have done something else.
[MR E]:   Yes. Yes.
HER HONOUR:   Ultimately, the actions are what they are.
[MR E]:   Yes. And the video is clear enough. And I’m listening to what your Honour is saying. I therefore won’t need to ask any further questions. I can make submissions on what was in the video.
HER HONOUR:   But
[MR E]:   I don’t need her to concede to that.
HER HONOUR:   Sure. But you – because you’ve already got it and I just was thinking you’re just covering it again.
[MR E]:   Yes.
HER HONOUR:   She has given you the concession.
[MR E]:   Yes.
HER HONOUR:   But the actions are what the actions are of both parents.
[MR E]:   Yes.
HER HONOUR:   Right. Quite sure [Mr Spargo’s] going to be asked some questions about this.
[MR E]:   Absolutely.
HER HONOUR:   So I’m not wanting to interfere.
(Transcript 2 October 2024, p.45 line 8 – p.46 line 46)
These were matters more properly for counsel for the respondent. Similarly, during cross-examination of the respondent regarding her reporting to the police of alleged breaches of the apprehended violence order by the respondent, the primary judge again directed the respondent to leave the court and had the following exchange with counsel for the appellant:
HER HONOUR:   You need to be specific. A report is different to a charge. A charge is different to a conviction. They’re all steps in a path. You need to tread the path. It’s a general statement that’s – a general question that’s unhelpful to me, and by all means, cross-examine about any of the allegations that you wish, but it’s not a fair, conclusory statement - - -
[MR E]:   I appreciate that.
HER HONOUR: - - - that the police have unsubstantiated something. There’s either a progression or there’s not. There’s either a complaint or there’s not. There’s either a conclusion or there’s not. And we all need to remember section 91 and 92 of the Commonwealth Evidence Act, which says that I’m not bound by findings in another court; obviously, I have to take regard - - -
[MR E]:   Yes.
HER HONOUR: - - - to them, but equally in the absence of a witness, just because complaints aren’t prosecuted by the police doesn’t mean there’s not a reason for the complaint having been made.
(Transcript 2 October 2024, p.63 line 32 – p.64 line 3)
Considered severally, rather than jointly with the other passages from the transcript complained of below, it may be difficult to see how exchanges satisfy the “double might” test in Ebner.
The appellant also points to several instances in which the primary judge “entered into the area” and adopted the role of counsel for the respondent during cross-examination of her. For example:
HER HONOUR:    [Mr E] – sorry, [Mr F] you’re not objecting to this.
[MR F]:   I am. Yes.
HER HONOUR:   I can understand child support, but I’m not sure, because it is a document in exhibit 1, the binding financial agreement. Is there some issue about the property that I’m not aware of?
[MR E]:   No. There’s not, no.
[MR F]:   Your Honour, I - - -
HER HONOUR:   So, [Mr F], what do you say?
[MR F]:   Yea, I object to that last question on - - -
HER HONOUR:   Yes.
[MR F]:   - - - the basis that my client wouldn’t know the answer to that question in any sense.
HER HONOUR:   Well, it’s not relevant either, is it?
[MR F]:   That’s also not relevant, your Honour.
HER HONOUR:   Is it relevant, [Mr E]?
[MR E]:   It is relevant because I’m tying it in now to an understanding of how child support was going to be paid. So, what I will do is I will move on to the relevant section of it.
HER HONOUR:   Okay. You tell me it’s relevant.
(Transcript 2 October 2024, p.55 lines 6–37)

It appears from this exchange that, but for the intervention and encouragement of the primary judge, counsel for the respondent would not have objected; yet, in the first instance, that was counsel’s responsibility, not that of her Honour, save in limited circumstances. Later in cross-examination of the respondent, the primary judge made comments such as “She has answered the question, [Mr E]; it’s a matter for submissions, please”, in cross-examination by counsel for the appellant (Transcript 2 October 2024, p.65 lines 38–39); and “I’m sorry, ma’am. I don’t think that’s a fair question”, in cross-examination by counsel for the Independent Children’s Lawyer (Transcript 2 October 2024, p.83 line 45).
In the course of cross-examination by the counsel for the Independent Children’s Lawyer, the primary judge, without inquiry into relevance or explanation, stopped cross-examination of the respondent regarding an advertisement by her for a live-in nanny, stating:
HER HONOUR:   No. Sorry.
THE WITNESS:   Yes.
HER HONOUR:   I don’t need that.
THE WITNESS:   No.
[MS C]:   Thank you. Okay.
HER HONOUR:   Because the mother explained. I then might need to hear some evidence about why that’s a problem to have a babysitter or a nanny, so. Thank you.
[MS C]:   No. Thank you, your Honour.
HER HONOUR:   I don’t need it.
(Transcript 2 October 2024, p.85 lines 1–16).
In this regard, the provisions of s 57 of the Evidence Act, as to provisional relevance, are also to be recalled.
Again in the course of cross-examination by counsel for the Independent Children’s Lawyer, this time regarding the respondent’s alcohol consumption, there was the following exchange between counsel, the respondent and the primary judge:
[MS C]:   And how much alcohol would you say you drink per week, approximately?
THE WITNESS:   I wouldn’t drink weekly. I would probably say maybe once every month to six weeks, I go out with my mum’s group and we probably have five cocktails.
HER HONOUR:   Ma’am, what happens at mother’s group stays in mother’s group.
(Transcript 2 October 2024, p.92 lines 31–35).
In relation to the comment about “what happens at mother’s group stays at mother’s group”, her Honour, in her Reasons, said:
141The comment I made must be seen in the context of the evidence that the Mother had already given in her Affidavit and also in answer to the questions posed by [Ms C].
142The Father contends my comment is unduly personal towards the Mother and alluding to an association of allegiance and secrecy.
143I do not know the Mother other than as a litigant in proceedings before me.
144The Mother gave her answer to [Ms C’s] questions, so there can be no secrecy. The evidence was given.
145[Mr E] said in oral submissions that “what it portrays is a perception that there is an understanding between yourself and the Mother of something that the Father would not have an understanding of.”
146As I said to [Mr E], the test is an objective one, not a subjective one. How the Father perceives the interaction is not to the point.
147It is the fair-minded lay observer who has the context of the whole proceeding up to that point, not just that one comment.
148I asked [Mr E] to consider whether the fair-minded lay observer would consider the comment I made as a joke. He said no.
149In an exchange between myself and [Mr E], it became clear to me that the reason the comment I made was not acceptable was because I am female. [Mr E] agreed that was so.
150That is an innate quality that no one has control over. The innate quality of a judicial officer cannot be the reason (or one of the reasons) that a Judge ought to be disqualified from hearing a matter.
151Litigants do not get to choose their Judges. They certainly cannot seek to disqualify the Judge assigned to their matter on the basis of sex.
152[Mr D] submitted that the comment I made was a “sisterhood comment” and was “potentially familial”.
153[Mr E] and [Mr D] argue that the comment I made could be construed to show familiarity, or secrecy, or solidarity with the Mother, or sisterhood or secrecy.
154But, apparently, the fair-minded lay observer would not consider it was a joke.
155The High Court says that I am not required to sit mute or like a sphinx.
156There is no substance to Ground 6 and I reject it.
(Footnotes omitted)
That was an inappropriate, and most unfortunate, comment by the primary judge. Not only did it convey, at least, an element of protection of the respondent by her Honour, but it also connoted a sense of commonality between them, to the exclusion of the appellant.
The primary judge acknowledged her incursions on a number of occasions, saying, for example: “Sorry. I need to be quiet” (Transcript 2 October 2024, p.90 line 22); and, to counsel for the respondent: “I’m going to have to interrupt you a few times as well, just to be fair across the bar table” (Transcript 2 October 2024, p.94 lines 29–30). The latter comment might not unreasonably suggest that the primary judge considered that her interruptions of cross-examination of the respondent were, indeed, unfair and, further, that her Honour would need to find reasons to interrupt cross-examination of the appellant in order to appear fair to him too.
Very shortly thereafter, in an exchange with counsel for the Independent Children’s Lawyer, again during cross-examination of the respondent, the primary judge said:
HER HONOUR:   I don’t want to interrupt you, even though I keep interrupting you.
[MS C]:   No, and your Honour may interrupt as often as you would like.
HER HONOUR:   Well, I think the Full Court says I shouldn’t, so let’s – or, sorry, the Appeal Division. …
(Transcript 2 October 2024, p.95 lines 24–29)
Despite these acknowledgments, again shortly thereafter, when counsel for the Independent Children’s Lawyer had concluded her cross-examination of the respondent, the primary judge said: “Hang on, because I’ve got a couple of questions” (Transcript 2 October 2024, p.99 line 34). However, notwithstanding her Honour’s foreshadowed “couple of questions”, she then proceeded to engage in extensive questioning of the respondent, spanning over more than four pages of the transcript, which questions elicited answers supportive of her case (Transcript 2 October 2024, p.99, line 34 – p.103, line 46).
The primary judge made uninvited incursions during cross-examination of the appellant, such as: “[Mr Spargo]? … I need you to answer the questions that you’re being asked about you?” (Transcript 2 October 2024, p.110 lines 34–36); and, to counsel for the respondent:
HER HONOUR:   [Mr F], you’ve got to control the witness.
[MR F]:   Apologies, your Honour.
THE WITNESS:   Can you ask the question again, please?
HER HONOUR:   [Mr Spargo]. Stop, please.
Ask your question. Control the witness.
(Transcript 2 October 2024, p.115 lines 4–12)
These interventions were made of the primary judge’s own motion, without any request by counsel for the respondent.
The appellant identifies several instances in which the primary judge questioned him, effectively taking over cross-examination from counsel for the respondent:
HER HONOUR:   What was the context?‑‑‑
WITNESS:   There was no one actually allowed to see [X], because there was complications at the birth. She was in a humidicrib for – for around ‑ ‑ ‑
HER HONOUR:   No. What was the context of you saying to the mother at a later time, “My family is allowed to celebrate the birth of their first grandchild”?‑‑‑
WITNESS:   Yes. I don’t agree with the – the wording. But I – I was sympathetic to [Ms Spargo] a week or so later, and the context was that – yes – she was tired, and she wanted them to leave, because she was tired and exhausted, which – which – I was ‑ ‑ ‑
HER HONOUR:   Well, again, [Mr Spargo], you’re not answering my question. The context is you’re saying – not at the hospital – but was your family somewhere else where the child was and your wife was?‑‑‑
WITNESS:   No. The – they – no. No. The context was that the family eventually, a week or two later, were in the room.
HER HONOUR:   Right. At home or in the hospital?‑‑‑
WITNESS:   At the hospital.
HER HONOUR:   I see. So you’re saying it didn’t happen on the first day she was born, but they were there at the hospital on a different day?‑‑‑
WITNESS:   They were at the hospital on a different day.
HER HONOUR:   On a different day. Thank you. And then what happened?‑‑‑
WITNESS:   It was the first grandchild. Dad bought a single bottle of Grange to there to celebrate. There was – there was five people there, so there was a lot of people there visiting. It was myself, my siblings, Mum and Dad.
HER HONOUR:   And – sorry. Grange – what alcohol is that?‑‑‑
WITHNESS:   Penfolds Grange, one – a bottle of red wine.
HER HONOUR:   Red. All right. So ‑ ‑ ‑?‑‑‑
WITNESS:   Just ‑ ‑ ‑
HER HONOUR:   Yes. Go ahead? ‑‑‑
WITNESS:   Just celebratory sort of special drink. So one bottle between five people, and everyone had a glass of wine. [Ms Spargo] was getting a bit overwhelmed. And – yes. And she did request they left. I was – I said, “Yes. Okay.” She could tell I was a bit disappointed. You know, they had only get there, but she was tired. And the nurse did actually pull me aside and spoke to me and said, “Hey. You know, [Ms Spargo] has asked – she’s pretty tired. Can we sort of clear everybody out?” So I said, “Yes. No worries.” And then I can’t remember the exact context, but when I was talking to [Ms Spargo] afterwards, after my family left, I – I was obviously – I was a bit disappointed. I said, “Well, you know, sorry. But they were just – they were here. They were excited about the birth of their first grandchild.” So that – that was ‑ ‑ ‑
HER HONOUR:   So really ‑ ‑ ‑?‑‑‑
WITNESS: ‑ ‑ ‑ context.
HER HONOUR: Okay. So what you’re being asked questions about was on the day of the birth, and you’re saying, “No. It didn’t happen.” Did you put in your affidavit, “Look, she has got the days wrong. This happened on another day”?‑‑‑
WITNESS:   No. Because I don’t agree with what was actually said. It wasn’t said in the same manner or tone ‑ ‑ ‑
HER HONOUR:   Okay?‑‑‑
WITNESS: ‑ ‑ ‑ that she’s ‑ ‑ ‑
HER HONOUR: All right. That’s fine?‑‑‑
WITHNESS:   Sorry. I ‑ ‑ ‑
HER HONOUR:   Thank you. No. That’s fine. Thank you, [Mr F].
(Transcript 3 October 2024, p.143 line 21 – p.144 line 29)
Similarly, in the course of cross-examination of the appellant by counsel for the respondent in relation to a photo of the respondent holding an alcoholic drink whilst breastfeeding, the primary judge intervened as follows:
HER HONOUR:   Did you take the photo?---
WITNESS:   Yes. I did.
HER HONOUR:   Why?---
WITNESS:   To say to [Ms Spargo], “Look how bad this looks.” Like, it may not have been the right thing to do, but I was trying to – I don’t know – convince her to stop drinking while she was breastfeeding. I just didn’t agree with it, and I still don’t.
HER HONOUR:   You took a photo of your wife at that time breastfeeding your child to point out to the mother that she had a drinking problem; is that your evidence to me?---
WITNESS:   No. Not that she had a drinking problem. That - - -
HER HONOUR:   Okay?---
WITNESS:   Just – just to say, “Look, this is – this is how bad it looks.” Yes. I – I guess, in a way, I did. Yes, your Honour.
HER HONOUR:   I don’t understand your evidence about this issue, [Mr Spargo], because this was a time you two were still together, wasn’t it?---
WITNESS:   Yes. That’s right.
HER HONOUR:   The mother is smiling, isn’t she? Is she winking? Is this the photo that she’s winking?---
WITNESS:   I don’t think she’s winking.
[MS C]:   For reference, it’s page 39 of his affidavit, your Honour.
HER HONOUR:   Thank you. Sorry. I was looking at the wrong affidavit. So - - -
[MS C]:   She’s not winking, but she is - - -
HER HONOUR: Hang on. I want to not be incorrect. You’re right. Yes. Sorry. And – sorry, [Mr F], to interrupt.
[MR F]: That’s okay.
HER HONOUR:   When do you say this photo was taken? Which baby is this?---
[MR F]:   I believe that’s [X].
HER HONOUR:   Right. So when – what year was that?---
[MR F]:   Well, [X] was born 2016.
HER HONOUR:   So 2016. And it’s in your affidavit in 2024?---
[MR F]:   Yes.
HER HONOUR:   Thank you, [Mr F].
(Transcript 3 October 2024, p.160, line 20 – p.161, line 10)
A further instance of incursion by the primary judge is her Honour’s challenge to the appellant’s evidence that it was the children who came up with the term “Mummy’s special friends”:
HER HONOUR:   No, I understand that, but [Mr E’s] objection, I think, was on the basis of the potential assertion that it was the father who came up with “special friends”.
But you’re saying, sir, that it was the children who told you “Mummy’s special friends”. Is that what you’re saying, [Mr Spargo]?---
WITNESS:   Yes, that is what I’m saying, your Honour. The children said that.
HER HONOUR:   Which child?---
WITNESS:   [X].
HER HONOUR:   Said Mummy has got special friends?---
WITNESS:   No, she didn’t say it like that.
HER HONOUR:   Well, how did she say it? How did the term “special friends” end up in your affidavit?---
WITNESS:   Because when the kids would come to me, they would tell me what they did on the weekends, and, “Mummy had one of her special friends over this weekend”, or, “They stayed over. They brought their kids over.” Usually they would be - - -
HER HONOUR:   Okay. So it came from - - -?---And - - -
WITNESS:   That’s - - -?---Yes, they did, yes.
HER HONOUR:   Came from the kids. No worries. Keep going, [Mr F].
(Transcript 3 October 2024, p.172 lines 1-23)
While the appellant was being cross-examined in relation to his evidence that the respondent had tested positive for human papillomavirus, the primary judge directed him to leave the court room and proceeded to engage with his counsel, in very strong terms:
HER HONOUR:   [Mr E].
[MR E]:   Yes, your Honour.
HER HONOUR:   Explain to me how paragraph 171 came to be in this affidavit. And is your instructor the author of this document?
[MR E]:   Let me just check that, your Honour.
HER HONOUR:   Who drafted the document?
[MR E]:   It is my instructor.
HER HONOUR:   How dare an officer of this court think it’s relevant to a parenting dispute that a mother or father has had a sexually transmitted disease. Tell me how that’s relevant, [Mr E]. For the record, I am raising my voice, because I am outraged. And I will now lower my voice, because that is more appropriate.
[MR E]:   It’s the – can this be said without the - - -
HER HONOUR:   No.
[MR E]:   Okay.
HER HONOUR:   The mother is entitled to hear - - -
[MR E]:   Okay.
HER HONOUR:   Ma’am, did you want to be excused?
[MS SPARGO]:   No.
HER HONOUR:   Or do you want to hear this?
[MS SPARGO]:   I want to hear this.
HER HONOUR:   As you should.
[MR E]:   Certainly.
HER HONOUR:   Please proceed, [Mr E].
[MR E]:   I just didn’t want to offend her if I said anything - - -
HER HONOUR:   No. I suspect she’s highly offended. Also, this is coupled with the photograph of this mother breastfeeding one of the babies. As the Solicitors’ Conduct Rules clearing show – state, we legal practitioners are not the mere mouthpiece of our clients. We are the forensic gatekeepers of what is relevant in this court, and it is not a shop where parties get to come in and say, “This is what I want, and this is what I want you, my solicitor, to say.” So in respect of those two issues, would you kindly address me.
[MR E]:   Certainly. Can I take some instructions from my instructor first in relation to the process of it? I’m going to be speaking in relation to why it’s in there.
HER HONOUR:   Yes. But I won’t stand the matter down.
[MR E]:   No. No. Thank you. Thank you for that time, your Honour.
HER HONOUR:   Yes, [Mr E].
[MR E]:   The instructions received from the father were that – and he said that in his evidence now. There were a number of partners that he thinks were on a casual basis, and he took issue with that, because the children were being exposed to it. The reason that it has gone to this extent is that he’s trying to show the court of reasons and evidence that the mother’s evidence of only having one partner is inconsistent and supports his case theory that there were a number of different parties.
HER HONOUR:   Not my proposition to you, [Mr E]. As an officer of the court, I want you to take instructions as to why this solicitor considered it was appropriate to follow her client’s instructions to the extent that immaterial, irrelevant, highly embarrassing, humiliating information – just – because we’re all adults in this room, I think we can all understand that sexually transmitted diseases can be transmitted by one partner just as they can by 48.
[MR E]:   Absolutely.
HER HONOUR:   Please take those instructions.
[MR E]:   Your Honour, the affidavit went back and forward to the client. It was a poor judgment call to leave it in there when the client said, “This is the final affidavit that I want presented.” It should - - -
HER HONOUR:   Yes.
[MR E]:   It should have been removed. It was a poor judgment call. Your Honour, and I’m not going to let my instructor be exposed to this. I had some review of the affidavit material and myself didn’t remove that at the time. So I fall on my sword there as - - -
HER HONOUR:   I appreciate your candour, [Mr E].
[MR E]:   - - - I always will.
HER HONOUR:   Yes. Thank you for that.
[MR E]:   And, obviously, it’s something that I will take into consideration, as well, being a little more forceful in these situations, if I could put it that way.
HER HONOUR:   Tell me about the photograph of the breastfeeding that clearly is taken at a time these parties are together.
[MR E]:   Yes.
HER HONOUR:   And I’m going to be asked to believe, on your submission that this father took that photo not in a jesting, jocular way, which is certainly how it appeared to me, when I looked at it, and I did wonder, “Why is this in the affidavit?” This is clearly when the parties are together. The baby is breastfeeding. The mother is having a drink. Whoop-de-do. But he’s telling me in evidence, “Well, no. Actually, it’s because I was concerned.” Tell me how that humiliating photograph ended up annexed to an affidavit.
[MR E]:   Similar circumstances. It paints a very poor picture not only – if I can put it this way – not only for the inclusion of it in an affidavit but the insistence that it should have been removed. So it’s certainly open to your Honour to draw an inference from the reasons why it was taken in the first place and, secondly, why it was included in the affidavit material.
HER HONOUR:   Yes.
[MR E]:   So I appreciate both those points.
HER HONOUR:   Thank you, [Mr E]. Just while we have the father outside - - -
[MR E]:   Yes. Of course.
HER HONOUR:   - - - are there any other – because that escaped my attention.
[MR E]:   Yes.
HER HONOUR: And I would like to know now, in the absence of the father - - -
[MR E]:   Certainly.
HER HONOUR:   [Mr F] or [Ms C], are there any other disgustingly humiliating, irrelevant comments about this mother in the affidavit? Because I will be taken to them, and I will then be taken to them in submissions. Because I don’t propose to strike them out, because you might wish to make a submission to me, [Mr F], about what I should do with these comments
(Transcript 3 October 2024, p.174 line 1 – p.177 line 2) (Emphasis added)
In relation to the “whoop-de-do” comment, her Honour merely said:
112Example 9 complains about my comment in relation to this photo that “the baby is breastfeeding. The mother is having a drink. Whoop-de-do”.
113This comment was made in the absence of the Father. I had already heard cross-examination on this point prior to making my comment. I am allowed to make comments about the evidence once it has fallen.
Shortly thereafter, the primary judge continued in the same vein, saying: “I don’t need anyone to take me through any other inflammatory comments” (Transcript 3 October 2024, p.179 lines 41–42). In circumstances where objection had not been taken by counsel for the respondent to the appellant’s affidavit evidence, it is difficult to understand why her Honour saw fit to intervene, other than to voice her own personal outrage, in strong (and, indeed, inappropriate) terms.

When the trial resumed about a fortnight later, on 16 October 2024, an issue was initially canvassed between counsel and the primary judge regarding an incident alleged to have occurred in the intervening period. It was alleged by the respondent that one of the children had told her that the appellant had said that he was not concerned about what the outcome of the trial would be, and that he would be collecting the children from school one day that week. Her Honour made a number of comments about the appellant and his evidence, including: “I know he has got form” (Transcript 16 October 2024, p.4 lines 23–24); and “I already have an abundance of evidence that the father is inappropriately talking to these children” (Transcript 16 October 2024, p.5 lines 21– 22). Further, her Honour said to counsel for the respondent:
HER HONOUR: I can understand where you’re coming from, [Mr F]. And I’m pleased that we’re in the absence of the parties because then I can, maybe, make some comments, because I’m entitled to having heard all of their evidence. I agree with you, [Mr F], that the father’s evidence – no criticism of [Mr E]. Counsel always has to just sort of come in and deal with whatever evidence there is. I was left uneasy with the father’s assertions of being on the Lexapro. And I think I asked him. I said, “Well, hang on. How do you have a quarter of a dose?” And he said, “Well, I get the 20 milligram. And then because it’s the larger tablet, I’m told to quarter it.” And I said, “Okay. Well” – words of this effect – “well, that means if I see a script that you’re prescribed 20 milligrams, I’m not going to necessarily know that you’re having a quarter.” Right. So I heard that. And I was a bit concerned.
I was also – and I don’t think this is going to be a shock to anybody. I was quite concerned about the conversations the father has with the children in the car. And you heard me ask him, how come I don’t see the beginning parts of those videos. So that struck me as a concern. And I also was perturbed by the admissions that he made. So it’s me not making findings. It was admissions that he made about his behaviour that I was concerned by. So I can understand the context within which you’re making your submission. And I think that is procedurally fair to raise it at the earliest that, you say, you can. So again, that’s why I wanted to know, “Well, help me to understand what the timeline was.” Because, yes, at the earliest opportunity that someone wants to change their case, that should be - - -
[MR F]: I accept that, your Honour.
HER HONOUR: - - - provided.
(Transcript 16 October 2024, p.273 lines 5–30)
As observed above, considered severally, in isolation one from the other, it may be that some of the passages identified above might be said to be at the lower end of the range of complaints, such as not to satisfy the “double might” test in Ebner and rise to a reasonable apprehension of bias on the part of the primary judge.
However, in Sellers v Burns [2019] FamCAFC 111 at [78]–[79], the plurality of the Full Court, citing AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236 at 254–255 and Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at 611, said:
78We agree that to isolate each complaint as his Honour did fails to take into account the effect on the fair-minded lay observer the combined and cumulative effect of the comments and fails to consider whether that combined and cumulative effect gives rise to the necessary apprehension.
79 This, of itself is sufficient for error to be established.
(Footnotes omitted)
In Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 219 ALR 373 at [41], the Full Court of the Federal Court said, in upholding a ground of appeal alleging that the trial miscarried on the ground of apprehended bias:
41…We do not think it necessary to canvass in detail every complaint upon which reliance was made; what is important is the cumulative weight of the material that the appellants rely upon.
Considered jointly, over the course of the first three days of the trial, before it was adjourned part-heard, I consider that the cumulative effect of the aforesaid passages is such that a fair-minded lay observer, of the kind referred to in Johnson v Johnson at p.493, paragraph [13], might reasonably apprehend, as a real and not remote possibility, that the primary judge might not bring an impartial mind to the resolution of the question her Honour is required to decide, namely, the competing applications of the appellant and the respondent for parenting orders in respect of their children.
In the circumstances, the primary judge erred in law in her application of the test for apprehended bias and her consequent dismissal of the appellant’s recusal application on this basis.
Denial of procedural fairness
Having concluded that the primary judge so erred, regard to the desirability of judicial economy renders it unnecessary to consider the other grounds of appeal relating to denial of procedural fairness. See Boensch v Pascoe (2019) 268 CLR 593 at [7]–[8]. However, given her Honour’s approach in relation to this limb of the appellant’s recusal application, it is necessary to make some observations in relation thereto.
In relation to procedural fairness, in Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216 at [38], the Full Court said:
38The concept of procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome ( SZBEL v Minister for Immigration & Multicultural Affairs (2006) 228 CLR 152 at [25]). The rules of natural justice, which do not have immutably fixed content, are applied practically to ensure fairness ( Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at 99–100; National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 296 at 312). …
In Finch v Finch (2020) 60 Fam LR 342 at [14] – [16], the plurality of the Full Court said:
14In Galea v Galea (1990) 19 NSWLR 263 at 281–2 (Galea), Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles in relation to excessive judicial interference, as follows:
1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA).
2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1984) 78 Cr App R 23; E H Cochrane C Ltd v Ministry of Transport.
3.Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and “into the perils of self-persuasion”: see Sir Robert Megarry, “Temptations of the Bench” (1978) 16 Alta L Rev 406 at 409; see also U Gautier, “Judicial Discretion to Intervene in the Course of the Trial” (1980) 23 Crim LQ 88 at 95–96 and cases there cited.
4.The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 11 ALR 618 at 626; 26 FLR 1 at 10–11; 2 Fam LR 11,116 at 11,123; see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby [1970] 1 NSWR 654; 90 WN (Pt 1) (NSW) 427.
5.It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel’s brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117).
6.The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v R (1983) 152 CLR 657; 49 ALR 448 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ.
15This statement of principle is widely accepted: see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 (Royal Guardian); Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85 and Jorgensen v Fair Work Ombudsman (2019) 371 ALR 426; [2019] FCAFC 113 (Jorgensen).
16Further, the following principles may be distilled from the previous authorities in relation to excessive judicial intervention:
(a)Although it may overlap with ostensible bias, excessive judicial intervention leading to a lack of procedural fairness is a separate basis of appealable challenge (RPS v R (2000) 199 CLR 620; 168 ALR 729; [2000] HCA 3 at [10]–[12]; Royal Guardian at [35]–[39] and Jorgensen at [95]);
(b)A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal (Royal Guardian at [30]–[33] and [255]);
(c)The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness (Royal Guardian at [18]; Royal Guardian at [171] citing Michel v R [2010] 1 WLR 879; [2009] UKPC 41 (Michel) and Jorgensen at [102]);
(d)Inept representation may justify greater judicial intervention, in order to ensure the proper use of court resources, and avoid delay or unnecessary prolongation of the hearing (Royal Guardian at [38]);
(e)Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called “preliminary views” (Royal Guardian at [220]; Royal Guardian at [17] citing Michel and Royal Guardian at [163] citing Denning LJ in Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155); and
(f)The number, frequency and duration of the judicial interventions will be relevant, as will their nature and context (including the stage of the trial), content and manner of delivery (including tone of voice) (Royal Guardian at [164] citing Galea).
In the present case, the primary judge did not consider these matters in any detail or, indeed, at all. Rather, her Honour proceeded upon the misapprehension that a number of the powers conferred upon trial judges, formerly contained in Division 12A of Part VII of the Act, enabled and justified her to proceed as she did. However, nothing in that Division in any way derogates from the imperative for, and the obligation upon, judges to ensure and confer, procedural fairness.
In Huda & Huda and Laham at [9], the plurality of the Full Court said that, although proceedings in respect of parenting orders are “not disputes inter partes in the ordinary sense of that expression”:
However, even parenting proceedings, “are not to be equated with inquisitorial proceedings”. The Court “is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it”.
At [28], [128] and [155] of her Reasons, the primary judge referred to Johnson v Johnson at [13], where the plurality said:
… At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. …
However, this recognition of expanded judicial roles does not abrogate the need to assess whether particular interventions might reasonably be perceived as compromising impartiality or procedural fairness.
In Huda & Huda and Laham, the Full Court held that a trial judge’s interventions during, and taking over of, cross-examination may amount to procedural unfairness. Referring to the aforesaid statement in Johnson, the plurality of Full Court said at [1]:
Almost 20 years ago the High Court said: “modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”. So, too, proceedings in the Family Court must be conducted “without undue formality”. However, both modern judicial method and statutory informality have limits bounded by procedural fairness. The latter remains paramount because “having an impartial judge [seeing] fair play in the conduct of the case” is a “basic right underlying the adversarial system of trial”.
(Footnotes omitted)
The Full Court said at [29]–[31]:
29The arguments advanced on behalf of both Mr Laham and the husband refer to the primary judge's questioning of each as “cross-examination”. It should be accepted that the expression is used with an intended rhetorical flourish. We have carefully read the specific interventions referred to in written and oral argument. We consider the expression apt to describe the nature and tone of his Honour's questioning.
30The “number, length, terms and circumstances of the interventions” are important considerations. The impugned interventions came at critical points in the cross-examination of the husband and Mr Laham. They were directed to the central factual issue in the case. Moreover, they were directed to an issue (that is, whether the husband and Mr Laham had concocted the existence of a loan so as to perpetrate a “fraud on the court”) in respect of which, because of the “gravity of the matters alleged” required a careful evaluation of the evidence and, in this case, a careful assessment of the veracity and reliability of the evidence of Mr Laham and the husband.
31Those factors rendered it particularly important in the circumstances of this case that each of the husband and Mr Laham be afforded the opportunity to properly present their respective cases and, conversely, that the primary judge remain aloof from the conflict and that he not depart “from the role of a judge presiding over an adversarial trial” so as to “unduly [compromise] the judge's advantage in objectively evaluating the evidence from a detached distance”. So, too, those factors and the husband's difficulties with English rendered it particularly important in the circumstances of this case that each of the husband and Mr Laham not be prevented from doing themselves “justice in the giving of [their] evidence”.
(Footnotes omitted)
The Full Court continued at [39]–[40]:
39There can be little doubt that the questions asked by his Honour were designed to impugn Mr Laham's credit and all the more so when they are read with his Honour's cross-examination of the same witness the previous day. While we consider, with respect, that his Honour was correct to deny Mr Laham the opportunity to bolster his own credit in evidence-in-chief, it was unfair for his Honour to conduct a cross-examination of him designed to impugn that credit by asking leading questions which both suggested a view that his Honour had taken of the evidence (and, it would seem clear, a view he had taken of the witness's credit). To repeat, that finding was crucial to a central and grave factual finding.
40As has been said, “‘the demeanour of a witness is apt to be very different when he is being questioned by a judge from what it is when he is being questioned by counsel’”. Interventions can lead to a miscarriage of justice because, among other concerns, they prevent a party “from doing himself or herself justice in the giving of his or her evidence”. We have that very concern.
(Footnotes omitted)
Citing the decision of Basten JA in Royal Guardian Mortgage Management Pty Ltd v Nguyen at [19], in which his Honour referred to the decision of Vanstone J in Lockwood v Police (2010) 107 SASR 237 at [16], the plurality in Huda & Huda and Laham said at [46]:
46… The extent of his Honour’s questions to Mr Laham and the topic of those questions highlights the fact that “pressure from the judge (even if not conspicuously applied) may result in a witness making concessions which would not otherwise have been made”.
(Footnotes omitted)
At [51], the plurality continued:
51Further, the passage quoted suggests, respectfully, confusion on the part of his Honour between, on the one hand, an assertion of ostensible bias by reference to the nature and the extent of questioning and, on the other hand, procedural unfairness effected by the same. As pointed out in Royal Guardian, the High Court in RPS v The Queen said:
“But these are not complaints of bias or the appearance of bias; they amount to a complaint that the conduct of the trial was unfair. That is a radically different complaint and it is wrong to seek to apply tests developed in connection with questions of apparent bias in deciding whether the trial was fair. That question will turn largely on whether the accused has had a proper opportunity to advance his or her defence to the charge.”
(Footnotes omitted)
In Michel v The Queen [2010] 1 WLR 879 (cited with approval by the New South Wales Court of Appeal in Royal Guardian Mortgage Management Pty Ltd v Nguyen at [17]), Lord Brown said at [34]:
34… Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.

At [59], the plurality in Huda & Huda and Laham said:
59As we have earlier pointed out, one danger of judicial intervention identified in Royal Guardian is that even if judicial pressure is not “consciously applied”, it might nevertheless result “in a witness making concessions which would otherwise not have been made”. An added difficulty is that it may “not readily be assessable, especially by the judge who obtained it” whether the concession would have otherwise been made.
(Footnotes omitted)
In its summary and conclusion, the plurality said at [61]–[66]:
61“Appellate challenges to trial judgments, based on complaints of excessive intervention by the trial judge in the course of the hearing are never easy to evaluate”.
62We have sought to pay due regard to the fact that selected references to the transcript need to be read in the context of the whole of the transcript and the reasons lest an inaccurate impression be formed. We have read both.
63We are also conscious that some parts of the transcript reveal questioning by his Honour which sought to clarify evidence or sought to have each witness concentrate on the questions being asked and to limit dissembling. Each of those interventions are, of course, a proper part of the judge's role; they seek to elicit the orderly flow of the evidence and seek to engender an environment by which the evidence given and the demeanour with which it is given can provide the best possible guide to assessing the reliability and credibility of that evidence.
64Yet, against the background of those factors, and accepting that complaints of the instant type are never easy to evaluate, our reading of the impugned interventions seen in the context of the transcript and reasons as a whole, firmly persuades us of procedural unfairness as explained in the authorities to which we have referred.
65We are persuaded that, as counsel for Mr Laham contends and in which counsel for the husband joins that:
•His Honour's central finding of dishonesty summarised at [80] of the reasons was based in large part on the primary judge's own questioning of each of the husband and Mr Laham, particularly the latter;
•His Honour “descended into the arena” and, as a consequence, compromised his capacity to “properly assess the demeanour of [those two witnesses] and … creat[ed] the impression of pre-judgement”;
•Respectfully adapting the description given by Ward JA of the interventions in Royal Guardian, his Honour:
“ … commented on the evidence of [each of those two witnesses] while it was being given, and, if not displaying ‘profound disbelief’, on paper he certainly seems at times to have displayed a degree of scepticism of the evidence given by [both witnesses].”
•Each of the husband and Mr Laham, and particularly the latter, was again as Ward JA put it, “subjected to what amounted to extensive cross-examination by the primary judge”;
•His Honour “adopted the mantle of advocate” such that “the proceeding became, to a significant extent, an inquisitorial hearing”;
•We agree that it is accurate to describe passages of the evidence of each of the husband and Mr Laham as his Honour “taking over” the cross-examination of the witness and, in other cases, “tag-teaming” with counsel for the wife in asking questions; and
•His Honour commented on the evidence and expressed scepticism in respect of the evidence as it was being given. Some expressions used by his Honour (for example “that's what you say” earlier referred to) reinforced such an impression.
66We conclude that the nature of the primary judge's interventions and their purpose, tone and frequency are demonstrative of procedural unfairness.
The primary judge, in her Reasons at [30], cited the decision of Full Court in Cusack & Cusack(No 3) at [44], where the plurality said:
44The flavour of the husband’s complaint is that the primary judge intervened excessively when he was making submissions, but the tranches of transcript the husband recited only show the primary judge debating the husband about the merit of his application and the sufficiency of the supporting evidence. As a general observation, his Honour interjected during submissions for clarification, to answer direct enquiries, and to identify deficiencies in both the evidence and the proposed orders, as is common and permissible (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at [111]–[112] ; Antoun v R (2006) 224 ALR 51 at [27] ; Johnson v Johnson (2000) 201 CLR 488 at 493 and 504–505). The husband was not importuned. Occasional instances of mild exasperation aside, the transcript shows the interventions were reasonable and proportionate. …
Whilst the primary judge referred to each of the examples proffered by the appellant at first instance, it is evident that the relevant principles were not applied in her Honour’s analysis thereof, nor did she consider the cumulative effect thereof. Rather, her Honour proceeded upon what she considered to be her freedom as a judge to engage in the proceedings, including by reason of certain provisions of Division 12A of Part VII of the Act, without proper consideration of the principles of procedural fairness, as required by the authorities.
In relation to the extent of her questioning of the appellant and the respondent, the primary judge undertook a mathematical analysis, focusing on the quantity of her interventions, rather than the qualitative nature thereof. Her Honour said at [48], [50]–[52]:
48As the authorities tell me, whether there has been excessive judicial intervention will depend upon the number, length, terms and circumstances of the intervention. Interruptions early in a witness’ evidence may be less readily excused than one later, and the judge must ensure the appearance of an impartial and unprejudiced mind. I am entitled to ask clarifying questions.
…
50Asking the Father questions about which he felt uncomfortable, or the answer to which shows the Father in a bad light, is not the test for excessive judicial intervention.
51Many of the questions I asked were to clarify the evidence being given, which I am entitled to do.
52As to example 5, the father was not responsive. I am required to control the proceedings. Counsel for the Mother then asked the question again and it was answered.
(Footnotes omitted)
It is apparent, from the passages of the transcript cited above, that many of her Honour’s questions went beyond mere clarification of the questions asked by counsel and/or the answered proffered by the witness. Similarly, it is apparent that many of her Honour’s interventions went beyond controlling the proceedings, especially in circumstances where the cross-examiner had not yet pressed the witness for an answer or requested that her Honour direct the witness to answer the question.
Insofar as the primary judge said at [67] that, “[j]ust because I asked the Father questions, does not mean that I was engaging in cross-examination”, as a general proposition, that is self-evident. However, the qualitative difference between non-leading and leading questions is also self-evident, cross-examination being in the latter category. The passages of lengthy questioning by her Honour, cited above, overwhelmingly comprise leading questions, in the nature of cross-examination.
In relation to the recusal application grounded in a denial of procedural fairness, the primary judge concluded:
170The Father’s assertions of my entry into the fray, which I have already considered earlier in these reasons, are complaints as to procedural fairness.
171The Father was afforded the opportunity to give evidence by way of affidavit. The Father was cross-examined. He was given the opportunity for re-examination.
172The Father, through his Counsel, was given the opportunity to test the Mother’s evidence.
173As the trial is part-heard, not all the evidence has fallen. Final submissions have not been made.
174There was nothing [Mr E] could point me to that showed the conduct of the matter was procedurally unfair to the Father.
With respect, that was not the test. As referred to above, it is readily apparent from earlier passages throughout her Reasons, that the primary judge relied heavily on the provisions of Division 12A of Part VII of the Act, stating, for example, that examples proffered, not only by the appellant but also by counsel for the respondent at first instance, “seem to ignore the powers I have as a Judge to hear this matter and control the proceedings” (at [162]).
The appellant submits, correctly, that the “powers” available to the primary judge in no way justified or negated her Honour’s judicial obligation to ensure procedural fairness and a fair trial. Whilst s 69ZX(1)(e) of the Act permits judges to “ask questions of, and seek evidence or the production of documents or other things from parties, witnesses and experts,” this does not derogate from or negate the obligation upon judges to ensure a fair trial. The focus must be on how the power was exercised, rather than merely whether the primary judge had the power.
When the conduct of the primary judge, over the first three days of the part-heard trial is considered cumulatively and globally, and not merely through the lens of her Honour’s statutory powers, I consider (and, indeed the respondent concedes and the Independent Children’s does not dispute) that her Honour misdirected herself and that the appellant was denied procedural fairness.
For completeness, I note that, in his Summary of Argument, counsel for the appellant referred to an article by Sir Robert Megarry, then Vice-Chancellor of the Chancery Division of the High Court of Justice of the United Kingdom, entitled “Temptations of the Bench” (1978) 16 Alberta Law Review 406, in which the following salient observations were proffered.
In relation to judges indulging in unrestrained intervention, one of the vices of this indulgence is that it has the –
… grave defect of tending to deprive the litigant (and his counsel) of having his own case conducted his own way. It cannot be right for there to be silent battles of will between counsel and the judge about who will ask the witness the next question, or which of the various heads of argument is to be discussed, and so on. (p.408)
In relation to exchanges between Bench and Bar:
… there must be a judicial self-restraint which never lets the judge take over the conduct of the case from counsel, and never takes counsel out of his course. (p.408)
In relation to questioning of witnesses:
There may be many questions that the judge wishes to ask, but he cannot know whether, or when, or in what order, Council will ask them, whether counsellors deliberately delaying the exploration of some aspect of the topic for some very good reason. … The Judge should tread the path that counsel is hewing out, and not try to Hugh out age from part of his own. (p.409)
Further:
The more the judge does for counsel that counsel ought to have done for himself, the more the judge moves into council’s shoes and into the perils of self of self-persuasion. (p.410)
Not only are these observations salient, they are also salutary.
Ground 4 - Delay
This proposed ground of appeal effectively contends that the primary judge erred in law in holding that, in the absence of explanation for the appellant’s delay, the recusal application ought to have been made at some earlier time, such that he had waived his complaints.
The primary judge noted at [175]–[176] that the appellant filed his recusal application on 29 January 2025, in circumstances where he had been legally represented during the first tranche of the trial on 2, 3 and 16 October 2024.
Her Honour then said:
176Nowhere in his Affidavit filed 29 January 2025 does the Father explain his delay in bringing the recusal application.
177As I said to [Mr E], now that the Father has made his application, the submission is that the fair-minded lay observer at the time would have said this is all very troublesome, and yet it did not occur to any of the three Counsel appearing at the trial at the time.
178The appropriate time to make the application for recusal was either on 3 October 2024 or at the very least 16 October 2024 when the matter came back before me.
179There is no explanation for the delay in bringing the application so close to when the trial is due to recommence in a few weeks’ time.
The primary judge referred at [180] to Vakauta v Kelly at [5], where the plurality said:
5Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious. In such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.
(Emphasis added)
Her Honour also referred at [181] to Gin & Hing (No 4) at [27], where the plurality of the Full Court said:
The appropriate time to raise objections of bias is at the hearing itself, at the time of the impugned conduct of the judge, especially where a party has legal representation, rather than wait until the contents of the judgment are known (Vakauta at 572–574). A failure to complain of bias at the time of hearing, or shortly thereafter, and a failure to explain a delay in doing so, waives a complainant’s right to raise grounds of bias or to claim a revival of allegedly biased conduct within the reasons for judgment (Shipton at [61]–[62], [67]–[68] per the Full Court).
(Emphasis added)
However, her Honour seemingly overlooked the point made in the emphasised passages. No judgment had been delivered at the point when the recusal application was made; rather, the trial was adjourned part heard.
Further, as the plurality of the Full Court said in Finch v Finch at [16], even “[a] failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal”, citing Royal Guardian Mortgage Management Pty Ltd v Nguyen at [30]–[33] and [255]. See also Adacot & Sowle (2020) FLC ¶93–982 at [115].
Indeed, in Barlett and Bartlett (1994) FLC ¶92-455 at 80,712, the Full Court said that–
in the context of a custody case, strict rules such as those laid down in Vakauta's case, may not apply. We would generally have difficulty with the proposition that a decision as to the welfare of a child must be determined by the manner in which the child's parents or their counsel conduct their respective cases.
In circumstances where, properly analysed, the recusal application was brought in the course of the trial, whilst it was adjourned part-heard for several months, I do not consider any unexplained delay to be fatal.
Disposition
Having found that the primary judge erred in law in her dismissal of both of limbs of the recusal application, I consider that her Honour’s decision is attended by sufficient doubt to warrant it being reconsidered on appeal and, by reason of the nature thereof, which goes to the integrity of the judicial process, that substantial injustice would result if leave were refused. Accordingly, the conjunctive test for leave to appeal in Medlow & Medlow is satisfied.
Leave to appeal will be granted, the appeal will be allowed and, for the reasons above, the part-heard trial of the parenting proceedings will be remitted for rehearing by another judge of the Federal Circuit and Family Court of Australia (Division 2).
In his amended Notice of Appeal, the appellant also sought orders that:
4.That the parties be provided with the audio transcript of the part-heard Final Hearing on 2, 3 and 16 October 2024.
5.That the Court’s copy of the transcript of the evidence given on 2, 3 and 16 October 2024 be placed in a sealed envelope, with such envelope to be marked “Not to be provided to any person/party without further Order of the Court.”
6.That the parties and/or their solicitors destroy the electronic copy of the transcript of the proceedings given on 2, 3 and 16 October 2024 forthwith and file an Affidavit confirming that all electronic copies of same have been destroyed.
No submissions were made at the hearing of the appeal in relation to such orders and the appellant’s Summary of Argument is entirely silent in relation thereto. However, by reason of the Submitting Notices filed by the respondent and the Independent Children’s Lawyer, such orders are not opposed by them.
A not dissimilar, but more far reaching, provision, albeit by way of notation, rather than orders, was made by the Full Court in Henley and Bestari (2024) 68 Fam LR 284. However, in that case, in which the Full Court allowed an appeal from the dismissal of a disqualification application, the primary judge was exposed to proposed property settlement orders which materially deviated from the formal position of both parties. The documents the subject of the notation apparently disclosed the settlement negotiations.
In the present case, in the absence of submissions to the contrary by the appellant, I do not consider the transcript contains the same mischief which the Full Court saw fit to avoid in Henley and Bestari and, accordingly, the further orders will not be made.
COSTS
Notwithstanding the costs schedule filed by the appellant, he seeks costs certificates pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal and s 8 thereof in respect of the retrial. In the circumstances, it is appropriate that such certificates be granted.
The respondent filed a Submitting Notice, did not file a Summary of Argument and was self-represented at the hearing of the appeal. Her amended costs schedule, filed contemporaneously with her Submitting Notice on 2 April 2025, particularises her costs to that date in the sum of $1,698.40, or $581.90 at scale, albeit similarly on a solicitor/client basis. In the circumstances, it is not appropriate to grant a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act in respect of the appeal. However, at the hearing of the appeal, she advised that, if the appeal were allowed and a retrial were ordered, she too sought a certificate pursuant to s 8 in respect of the retrial. As with the appellant, it is similarly appropriate that such a certificate be granted.
Orders will be made to give effect to these reasons for judgment.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.
Associate:
Dated: 25 September 2025

NAA 83 of 2025 BRC 14042 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR SPARGO Appellant
AND:	MS SPARGO Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Spargo & Spargo [2025] FedCFamC2F 133
Appeal number:	NAA 83 of 2025
File number:	BRC 14042 of 2023
Judgment of:	STRUM J
Date of judgment:	25 September 2025
Catchwords:	FAMILY LAW – APPEAL – LEAVE TO APPEAL –Appeal against judgment dismissing recusal application – Where principles regarding denial procedural fairness not properly considered or applied – Where the test for apprehended bias in Ebner incorrectly applied – Where, cumulatively, a fair-minded lay observer, cognisant of all relevant facts, might reasonably apprehend the primary judge might not bring an impartial and unprejudiced mind to the resumed hearing of the part-heard trial – No relevant delay in bringing recusal application – Leave to appeal granted – Appeal allowed – Matter remitted to a judge other than the primary judge for retrial – Costs certificates ordered.
Legislation:	Evidence Act 1995 (Cth) ss 26, 41, 57, 135, 136 Family Law Act 1975 (Cth), pt VII, div 12A, ss 69ZN, 69ZP, 69ZQ, 69ZR, 69ZT, 69ZW, 69ZX Federal Circuit and Family Court of Australia Act 2021 (Cth) r 13.09 Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Abano & Backus (No 2) [2025] FedCFamC1A 88; [2025] FedCFamC1A 88 Adacot & Sowle (2020) FLC ¶93–982; [2020] FamCAFC 215 AJH Lawyers Pty Ltd v Careri (2011) 34 VR 236; [2011] VSCA 425 Archeson & Begbie(No 2) (2024) FLC ¶94-176; [2024] FedCFamC1A 21 Barlett and Bartlett (1994) FLC ¶92-455; [1994] FamCA 7 Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 Bhatnagar & Riju [2018] FamCAFC 144 Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 Charisteas & Charisteas (2021) 273 CLR 289; [2021] HCA 29 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Cusack & Cusack (No 3) [2024] FedCFamC1A 93 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Edhouse & Edhouse (No 2) [2024] FedCFamC1A 111 Finch v Finch (2020) 60 Fam LR 342; [2020] FamCAFC 60 Genesalio & Genesalio (No 4) [2023] FedCFamC1A 216 Gin v Hing (No 4) [2024] FedCFamC1A 247 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 Henley and Bestari (2024) 68 Fam LR 284; [2024] FedCFamC1A 12 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huda & Huda and Laham (2018) FLC ¶93–837; [2018] FamCAFC 85 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Lockwood v Police (2010) 107 SASR 237; [2010] SASC 120 Medlow & Medlow (2016) FLC ¶93–692; [2016] FamCAFC 34 Michel v The Queen [2010] 1 WLR 879 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 Moore (a pseudonym) v The King (2024) 419 ALR 169; [2024] HCA 30 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 219 ALR 373; [2005] FCAFC 138 QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 279 CLR 148; [2023] HCA 15 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 Sellers v Burns [2019] FamCAFC 111 Strahan v Strahan (Disqualification) (2009) FLC ¶93-414; [2009] FamCAFC 204 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 Robert Megarry, “Temptations of the Bench” (1978) 16 Alberta Law Review 406
Number of paragraphs:	146
Date of hearing:	4 June 2025
Place:	Melbourne
Counsel for the Appellant:	Mr George
Solicitor for the Appellant:	Trianon Law
The Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Newman
Solicitor for the Independent Children's Lawyer:	Parker Family Law

ORDER MADE BY:	STRUM J
DATE OF ORDER:	25 SEPTEMBER 2025