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The adversarial common law system in Australia, by its very definition, often delivers results that are far from what was expected, even to impartial third parties.

The counter-balance to this uncertainty is the hierarchical layers of Courts, providing avenues for appeals.

Sometimes however issues arise in family law proceedings in Australia with regard to the performance of the judicial officer or the Independent Children’s Lawyer, which cannot wait for the sometimes long-winded appeals process, and require immediate action or remedy.

This paper will consider the procedure for removing a judge and an Independent Children’s Lawyer (ICL) from proceedings.

As the procedure for removing a judge varies considerably from removing an ICL, I will deal with them on a separate basis.

Removing a judge from proceedings

In certain cases a party to litigation might conclude that a judge is not fit to preside over proceedings and should be removed. The grounds for removing a judge from proceedings, however, are narrow and restrictive. A judge can only be disqualified from a matter on the grounds of bias.

Governing Principle

The principles of natural justice require that a decision maker, ie. a judge or a magistrate, must approach a matter with an open mind that is free from pre-judgment or prejudice. In other words, the decision maker must be free from bias.

A party who suspects that a judge or a magistrate is biased may seek an application to have the decision maker removed from the proceedings.

Types of Bias

There are two types of bias, actual bias and apprehended bias. Actual bias is available only if a party can prove that the decision maker’s minds is closed and will not be swayed by the evidence in hand. On the other hand, apprehended bias (also known as apparent bias) only requires a finding that a fair minded and reasonably well informed observer might conclude that the decision-maker did not approach the issue with an open mind.

Most cases concern apparent bias, as opposed to actual bias. This is partly because apparent bias is much easier to prove as it does not require an applicant to establish the actual state of mind or attitude of decision-makers.The test for determining whether a judge should disqualify himself or herself by reason of apprehended 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”¹ affirmed in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. ]

If a party reasonably suspects that the judge or magistrate’s impartiality is affected his actual or apparent bias, then the party can apply to have the judge removed on this ground.

Instances of Bias

It is not always easy to know when the judge or magistrate should be disqualified on the grounds of bias. Case law offers some helpful guidance to parties:

1. The fact that the judge, or a close family member, holds shares in a litigant party is normally not a ground for disqualification, unless the value or income stream of the shares could be affected by the outcome of the litigation²:
2. The fact that the judge has a direct pecuniary interest in the proceedings is a ground for disqualification³:
3. The fact that the trial judge has expressed views in previous decisions, or in extra-judicial publications in relation to the kind of litigation before the court, which may have questioned an existing line of authority is not normally a reason for disqualification unless those views suggest that the judge could not hear the case with an “open mind”.⁴ 1 All ER 65. ]
4. The fact that the judge is related to a party, or to one of the party’s legal representatives- including an intimate relationship, at least where that legal representative is actually involved in the litigation, will normally be a ground for disqualification ⁵:
5. Where the judge was married to a party, or to one of the party’s legal representative, and that relationship has subsequently broken down. What is a reasonable period of disqualification following the end of the relationship will depend on the facts of the case;

How to make an application

A party can make an application for disqualification without filing a formal motion.⁶ 2 NSWLR 740; Bainton v Rajski (1992) 29 NSWLR 539. ]

Traditionally, the question of disqualification has been dealt with in an informal way before the judge against whom objection is, or might be, taken. A party can seek to have the judge disqualified by drawing the issue to the attention of the registrar with appropriate adjustments being made to the listing of the matter⁷. In such cases, the issue may be resolved without the need for it to be ventilated in open court.

If a party is unable to resolve the matter informally, then the party should file an application seeking the disqualification of the judge (also known as recusal application). Generally an application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts.

It should be noted that there is no uniform procedure for raising the issue; nor a uniform method for informing the court as to the facts supporting a request for disqualification in circumstances where that might be regarded as necessary. The matter is essentially unregulated and judges have increasingly invited the parties to make submissions, taken evidence and delivered reasons.⁸

Waiver

It is important for a timely objection to be made by a party if it is considered that there is a serious question as to whether the judge should withdraw. By failing to make a timely objection, the litigant may be held to have waived any objection to the judge hearing and determining the matter.

As waiver may be implied, where a party is making an informal or oral application, it important for an objection to be recorded on the transcript, or noted by the judge if transcript is not taken.

Tender of Evidence

In certain circumstances evidence has been permitted of the existence of a potentially disqualifying interest held by the trial judge in the subject matter of the proceedings. In Clenae Pty Ltd v ANZ⁹ VSCA 35. ], for example, affidavit material was tendered on the appeal to show the existence of the trial judge’s shareholding in the respondent company.

Who hears the Application?

It is well established that the judge assigned to hear the matter will decide whether he or she ought to disqualify him or herself on the grounds of bias.

Appeal

A judge or magistrate will not automatically step aside wherever an objection is made. In some cases, the judge or magistrate may refuse an application seeking disqualification. Where a matter is being brought in the Federal Circuit Court or the Magistrate Court of Western Australia, a party can appeal to the Family Law Court where an application for disqualification has been rejected by the primary judge or magistrate.¹⁰

However, when a judge of the Family Court, as opposed to a lower court, refuses to disqualify him or herself from the proceedings, then the question of whether that decision is appeal-able is a vexed issue. A refusal by a judge to disqualify him or herself can be relied upon as a ground of appeal in relation to the substantive judgment. Traditionally it has been held that no appeal lies from the rejection of a refusal application; Wentworth v Rogers.

However, the decision in Barakat v Goritsas (No 2) [2012] NSWCA 36 suggests that it will frequently be appropriate to grant leave to appeal where a recusal application has been rejected ‘assuming that the challenge is not patently untenable’.

In any case, a party may seek a writ of prohibition from the High Court against the judge in the Family Court.

Prohibition

Where the judge or a magistrate has refused to disqualify him or herself, a writ of prohibition can be sought against judges of federal courts and inferior courts including the Family Court of Australia.

Thus, in The Queen v Watson; Ex parte Armstrong¹¹the High Court held that prohibition could lie against a judge of the Family Court of Australia prohibiting the judge from hearing an application for dissolution of marriage and ancillary relief where, in all of the circumstances, the parties or the public might reasonably have suspected that the judge was not impartial. The Court held that prohibition should issue on the ground that the parties or the public might reasonably suspect that the judge was not unprejudiced or impartial.

Removing an Independent Children’s Lawyer (ICL)

The procedure for removing an Independent Children’s Lawyer is different and simpler. Under regulation 8.02(1) of the Family Law Rules 2004, a party may apply for the appointment and removal of an independent children’s lawyer by filing an Application in a Case. This application can also be made orally.

The Court will only do this in very serious circumstances, which would include where there is evidence that the lawyer:

1. -is acting against the child’s best interests
2. -is not doing the job properly
3. -is not making independent decisions, or
4. -has a conflict of interest.¹²

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Prajesh Shrestha

Online Legal Information Author at Family Law Express

'My name is Prajesh Shrestha and I am currently in my 3rd year of the Juris Doctor at the University of Sydney.Upon graduating, I am interested in becoming a legal practitioner. My areas of interest includes family law and conveyancing. I also have a strong and abiding interest in social justice and as such I am undertaking a legal internship at the Public Interest Advocacy Centre performing legal research, client interviews and drafting.

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