Procedural Fairness -v- Recusal Applications

Litigants often feel deflated, that the Judge didn’t like them, that it’s just not fair!  Unfortunately, sometimes they are correct but when is it appropriate to make an application for a Judge to recuse him/herself?

In Spargo & Spargo [2025] FedCFamC1A 174, an appeal from the decision of Judge Bertone in Spargo & Spargo [2025] FedCFamC2F 133, His Honour, Strum J, in allowing the appeal found, inter alia, “…cumulatively, a fair-minded lay observer, cognisant of all relevant facts, might reasonably apprehend the primary judge might not bring an impartial and unprejudiced mind to the resumed hearing of the part-heard trial”.

The Appellant Father had been involved in a parenting trial before a Division 2 Judge.  The matter was part-heard and during intervening period the Father filed an Application in a Proceeding seeking that the Division 2 Judge recuse herself which was determined and dismissed.  The Father then filed both an application for leave to appeal and a Notice of Appeal.  As a result, the trial was further adjourned to allow the Appeal to be determined.

On Appeal both the Mother and the ICL filed Submitting Notices, notwithstanding these concessions the Court still needs to be satisfied there has been appealable error.  In written submissions the Appellant Father had provided 22 specific examples from the transcript in support of his recusal application.

The Appellant raised four grounds of appeal in his Amended Notice of Appeal, of which His Honour found that Ground 2 was the gravamen of the appeal.  That ground alleged that the primary judge erred in law in her dismissal of each of the limbs of the recusal application being apprehended bias and denial of procedural fairness.

During the primary trial Her Honour had required the Mother to leave the courtroom, on more than one occasion, and then engaged in a serious of questions put to the Father’s Counsel, essentially criticising the way in which he was cross-examining the Mother.  Her Honour also queried why the Mother’s Counsel was not objecting to certain questions, essentially adopting the role of the Mother’s Counsel.  Her Honour took a similar approach when Counsel for the ICL was cross-examining.  During one such exchange Her Honour opined:  “Ma’am, what happens at Mother’s group stays in Mother’s group.”  A somewhat extraordinary statement which even a lay person could deduce aligned Her Honour with the Mother.

The Appellant also identified several other incursions being:

• occasions where Her Honour took over the cross-examination of him at trial;
• occasions where he was directed to leave the Courtroom and in the presence of the Mother his Counsel was questioned about the content of his Affidavit and who drafted it;
• in respect of the introduction into evidence of the Mother consuming an alcoholic drink while breastfeeding Her Honour stated “The Mother is having a drink. Whoop-de-do”;
• Her Honour repeatedly asking the Father the same questions, until Her Honour elicited answers with which she was apparently satisfied;
• effectively taking over cross-examination from Counsel for the ICL and continuing long after Counsel for the ICL had concluded cross-examination of the Father;
• commenting in respect of the Father “I know he has got form”.

His Honour, Strum J, considered that cumulatively, all of these incursions by the primary Judge meant that she had erred in law in her application of the test for apprehended bias and her consequential dismissal of the Appellant’s recusal application on this basis (p98).

The Appellant’s leave application was granted, the appeal allowed and the part-heard trial remitted for rehearing by another Division 2 Judge.  Both parties were granted Costs Certificates.