WARNER & HOUSEMAN

In *Warner & Houseman*, the Family Court of Australia was asked to consider whether a judge should disqualify himself from hearing proceedings due to circumstances that might give rise to a reasonable apprehension of bias. The parties involved were the applicant, Ms. Warner, and the respondent, Mr. Houseman, in family law proceedings.

The central legal issue before Mushin J was whether the judge’s prior involvement in a separate, but related, matter involving the same parties, specifically his role in approving a consent order concerning property settlement, created a reasonable apprehension of bias in the current proceedings, which concerned parenting arrangements. The judge was required to determine if his prior judicial act, which had been set aside by a Full Court, would lead a fair-minded lay observer to conclude that he could not bring an impartial mind to the determination of the parenting issues.

Mushin J reasoned that the test for apprehended bias requires consideration of whether a reasonable member of the public, knowing the facts, would apprehend that the judge might not decide the case impartially. His Honour noted that while he had previously made a consent order, that order had been set aside and the matter remitted for rehearing. He concluded that his prior involvement did not, in itself, prevent him from impartially considering the evidence and submissions in the current parenting proceedings. The judge found that the circumstances did not give rise to a reasonable apprehension of bias.

Consequently, Mushin J dismissed the application for disqualification.