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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Spargo & Spargo [2025] FedCFamC1A 174
Case
[2025] FedCFamC1A 174
Decision Date
CaseChat Overview and Summary
The parties involved in this case are Mr. Spargo, the appellant, and Ms. Spargo, the respondent. The dispute pertains to a parenting order application concerning the two children of the appellant and the respondent. The case was heard in the Federal Circuit and Family Court of Australia. The appellant, Mr. Spargo, sought to appeal the judgment that dismissed his application for the primary judge to recuse herself from the proceedings on the grounds of apprehended bias and denial of procedural fairness.
The legal issues that the court had to decide were whether the primary judge properly considered or applied the principles regarding the denial of procedural fairness and whether the test for apprehended bias in Ebner was correctly applied. The court also had to determine if the cumulative effect of the relevant factors might lead a fair-minded lay observer to reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the resumed hearing of the part-heard trial.
The court found that the primary judge did not properly consider or apply the principles regarding the denial of procedural fairness and incorrectly applied the test for apprehended bias in Ebner. The court concluded that, taking into account all the relevant facts, a fair-minded lay observer might reasonably apprehend that the primary judge might not bring an impartial and unprejudiced mind to the resumed hearing of the part-heard trial. As a result, the court granted leave to appeal, allowed the appeal, and remitted the proceeding for retrial before a different judge. The court also ordered the granting of costs certificates to both parties in relation to the appeal and the new trial.
Orders
Orders of the court
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.
Background
Background to the litigation
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).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.