XUAREZ & VITELA

In the matter of XUAREZ & VITELA, heard before Forrest J, the applicant sought the recusal of the judge on the grounds of apprehended bias. The applicant's apprehension arose from the judge's prior referral of the applicant to the Australian Federal Police for an alleged breach of section 121 of the *Family Law Act 1975* (Cth). Concurrently, the applicant also sought a review of a Registrar's decision, which had declined to proceed to an undefended hearing. This refusal by the Registrar was based on the applicant's failure to prosecute the application, despite trial directions having been given for the filing of documents and the respondent's non-adherence to those time limits.

The primary legal issues before the court were whether the judge harboured an apprehension of bias that would necessitate recusal, and whether the Registrar had erred in not proceeding to an undefended hearing. The court was required to consider the objective test for apprehended bias, which involves assessing whether a fair-minded lay observer, knowing the facts, would apprehend that the judge might not bring an impartial mind to the issues. Furthermore, the court had to determine if the applicant's failure to prosecute the application, coupled with the respondent's non-compliance with directions, justified the Registrar's decision to not proceed to an undefended hearing.

Forrest J dismissed the application for recusal, finding that the referral to the Australian Federal Police did not give rise to a reasonable apprehension of bias. The judge reasoned that the referral was a procedural step taken in accordance with the court's obligations and did not indicate a pre-judgment of the substantive issues. Regarding the review of the Registrar's decision, the court found that the applicant had failed to prosecute the application, which was the primary reason for the Registrar's refusal to proceed to an undefended hearing. The court noted that while the respondent had not complied with directions, the applicant's own inaction was a decisive factor.

Consequently, Forrest J dismissed the applicant's Applications in a Case filed on 20 November 2015 and 15 February 2016 for want of prosecution. There were no orders made as to costs.