I don’t like the Family Law Judge who is deciding my case. What can I do?
This question is often asked and the simple answer is ‘not a lot.’
The longer, more complicated answer is ‘it depends’.
When parties to a Family Law dispute come to the Federal Circuit and Family Court of Australia, one of, if not the most important, individuals in the outcome of that dispute is the Judge who will determine it. This is particularly the case given that the Family Law Act, regardless of whether the proceedings relate to a parenting and/or a property dispute, requires an assessment and weighing of a number of relevant considerations. That is to say – it is a highly discretionary area of law.
Parties to Family Law proceedings don’t get to ‘choose’ their Judge. If the particular facts of a dispute permit, then steps can be taken to ‘narrow/change the field’ of available Judges. For example:
- Transferring the proceedings from Division 2 (where it will start) to Division 1 (where the more complicated proceedings are determined); or
- Having the proceedings placed into one of the many specialised lists, such as the ‘Indigenous’ List or the ‘Major Complex Financial Proceedings’ List.
The eligibility to be transferred to Division 1, or be placed into a specialised list, is a product of circumstance. It isn’t something that can be directly controlled.
Whether in a specialised list or otherwise, Family Law Judges are highly trained. They each typically have had their own storied career, often as a barrister, solicitor, academic or some combination of these.
Be that as it may, Family Law Judges are, at the end of the day, human. They have lives away from the Court and, anecdotally, they have even been sighted doing the mundane – going for a morning run before Court. Many of them even enjoy a glass red wine as much as the next person.
This ‘humanness’ can become apparent whilst a Judge is presiding over proceedings. It can be a positive and add to that particular Judge’s ability to manage the proceedings and/or the hearing itself.
It is that same ‘humanness’ that can also lead, although it should not, to that Judge:
- Being biased and deciding the case, either partly or wholly, on something other than its legal and factual merit (actual bias); or
- Saying or doing something, such that a “fair-minded lay observer” might reasonably apprehend that the Judge was not impartial (apprehended bias).[1]
Both actual and apprehended bias, if found, mean that the Judge in question is disqualified from hearing the proceedings.
It is very difficult to meet the test for apprehended bias, and even more so to prove a Judge is actually biased and not impartial. If you believe that your Family Law Judge has said or done something and, as a result, you are apprehensive that they might be biased, you can consider filing an Application for that Judge to ‘recuse’ themself from hearing your proceedings.
In relation to apprehended bias, it is important to note that:
- Family Law proceedings operate on a docket system. Judges will often procedurally manage proceedings in addition to determining the overarching dispute. As a result, a Judge may acquire knowledge of your dispute on an ongoing basis, over a period of time. This may incline your Judge towards making “strong,” “candid” or “critical comments” during the course of the proceedings. Your Judge making strong, candid or critical comments will typically not be enough to meet the test for apprehended bias.[2]
- During the proceedings generally and also during a substantive hearing, your Judge may ask questions. This does not, in and of itself, indicate of bias or give rise to an apprehension of bias. Your Judge is not required to sit there like an “inscrutable sphinx.”[3]
- A fair-minded lay observer is not taken to be “complacent” nor are they taken to be “unduly sensitive or suspicious.” They are also not assumed to have “a detailed knowledge of the law, or of the character or ability of a particular Judge.”[4]
Some broad examples, where it was been found that there was an apprehension of bias include:
- Where one party’s counsel and the Judge had met for coffee, exchanged text messages and had telephone conversations in a personal capacity outside of the proceedings but whilst that Judge was preparing to deliver their Judgement.[5]
- Where the Judge made repeated, negative and unjustified comments about one party’s witnesses. [6]
An Application for a Family Law Judge to recuse themselves is highly technical. The decision to file such an Application shouldn’t be made lightly. Filing such an Application can cause significant delay in the proceedings. It can also result in significant legal fees for both parties.
You should seek specialist legal advice if you believe that the Judge who is determining your case may be biased.
For assistance regarding your Family Law dispute, please contact Coleman Greig’s expert Family Law team.
[1] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6].
[2] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55 at [180].
[3] Channing & Channing [2024] FedCFamC1A 99 at [21],[40].
[4] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15 at [46]-[49].
[5] Charisteas v Charisteas [2021] HCA 29.
[6] Vakauata v Kelly (1989) 167 CLR 568.
