TARBELL & SWEFFORD

The Family Court of Australia, in the matter of Tarbell & Swefford, heard an application by the mother seeking the disqualification of the presiding judge. The father opposed this application. The core of the dispute revolved around whether the judge had demonstrated apprehended bias in the proceedings concerning their child.

The court was required to determine two primary legal issues: firstly, whether the mother's application for disqualification should fail due to her alleged acquiescence in not raising the issue earlier; and secondly, whether any of the five grounds for disqualification raised by the mother had merit. The legal principles governing such applications were drawn from High Court authorities such as *Ebner v Official Trustee in Bankruptcy* and *Johnson v Johnson*, which establish that 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 case. This test is objective, focusing on the possibility, not probability, of bias, and requires a logical connection between the alleged bias and a feared deviation from deciding the case on its merits. Crucially, judges have a duty to sit and cannot accede to disqualification applications too readily, as this could encourage parties to seek judges they believe will favour their case.

The judge considered the mother's grounds for disqualification, which included the acceptance of a letter from Dr. W dated 27 May 2008 as an expert report. The mother argued that Dr. W's opinions in this letter were based on communication from the father and that the letter itself was unsubstantiated. The judge noted that the underlying facts reported by the father to Dr. W did not appear to be in factual dispute. The judge also addressed the issue of acquiescence, acknowledging the principle that disqualification applications should not be kept in reserve. However, the judge found that the mother had not unduly delayed her application, particularly given her incarceration overseas for a significant period.

Ultimately, the application for disqualification was refused. The judge found that the mother had not established grounds for disqualification and that her application should not fail due to acquiescence.