T & L

The Full Court of the Family Court of Australia considered an appeal concerning the removal of a child representative. The dispute arose when the father sought the removal of the child representative, a partner in a law firm, on the grounds of apprehended bias. This apprehension stemmed from the fact that a former judge, who had made adverse findings against the father in earlier proceedings, was now a "special counsel" to the same firm.

The central legal issue before the Full Court was whether the circumstances gave rise to a reasonable apprehension of bias on the part of the child representative, thereby justifying their removal from the proceedings. The Court was required to determine the principles applicable to the removal of a child representative and, in particular, whether the child's best interests remained the paramount consideration in such an application, even when allegations of bias were raised.

The Full Court reasoned that the test for apprehended bias requires an objective assessment of whether a fair-minded lay observer, knowing the relevant facts, would apprehend that the child representative might not bring an impartial mind to the issues. The Court emphasised that the child representative's role is to represent the child's best interests, and this duty is paramount. While the former judge's association with the firm was a relevant fact, the Court found that it did not, in itself, create a reasonable apprehension that the child representative would be influenced by those prior findings or would be unable to act impartially in representing the child. The Court affirmed that the child's best interests are the paramount consideration in determining whether to remove a child representative.