Family Law Court: Bias of a Judge

Introduction

Bias of a judge against a party is a serious concern where a party perceives that bias is at play. A party may perceive that there is bias, sometimes referred to as “apprehended bias”, resulting from a trial judge’s conduct throughout proceedings. It is fairly uncommon that bias in fact is shown to have existed in a court matter.

If you are in court and have concerns about bias of a judge hearing your matter, you should ensure that you raise any complaint about, or concerns relating to, apprehended bias, with the trial judge. If you do not do that, your failure to then raise the concern may be seen on appeal as a fundamental hurdle to your first raising such a complaint on appeal after the trial judge has handed down orders.

However, where apprehended bias is raised as one ground of an appeal against a trial judge’s decision, it is the first ground that the appeal court should address. The High Court of Australia in Johnson v Johnson [2000] said in relation to apprehended bias or allegations of bias of a judge that:

“The test to be applied  in Australia in determining whether a judge is disqualified by reason of the appearance of bias… is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”

Relevant Case Law

In the case of Peake & Cousins [2019], the Full Court of the Family Court of Australia dismissed an appeal by a Mother where one ground of her appeal alleged bias of a judge at the trial of her matter. The appeal failed on this ground.

The Mother had not provided sufficient detail in her Notice of Appeal to support the allegation. Whilst the Full Court said that it appeared that the Mother was alleging bias of a judge at trial due to her having assisted the Respondent Father in the re-writing of an application concerning contravention of court orders by the Mother, the Full Court said that the only assistance that the trial judge had given the Father was directing his attention to the Family Law Rules 2004 and advising him that his application was deficient in several ways and giving the Father the opportunity to correct those deficiencies. 

The Full Court said in effect that having regard to guidelines in the case of Re F [2001] and the requirements of Division 12A of the Family Law Act 1975 (Cth), it was appropriate for the trial judge to have provided the limited assistance to the Father which she did and that bias of a judge had not been established.

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