By Craig Nicol and Keleigh Robinson
Procedure – Apprehended bias – Retired Family Court judge appeared as counsel in proceedings – Recusal by current judge
In Tanit [2026] FedCFamC1F 171 (17 March 2026), Brasch J conducted a case management hearing in a property matter. At the hearing, a former justice of the Family Court of Australia appeared on behalf of the respondent.
After her Honour noted that she had appeared before the former justice as a barrister, the Court referred to Ebner v Official Trustee in Bankruptcy [2000] HCA 63 and said (from [22]):
“[The] … ‘double might test’ asks whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue they are to decide.
( … )
[27] There is … a logical connection between a former Justice of this Court appearing before this same Court and the objective apprehension. Frankly, from the perspective of the fair-minded lay observer… they might reasonably apprehend, notwithstanding the time out provision in the Bar Rules that:
(a) The husband, for whom the former Justice acts, has, to use the vernacular, ‘the inside running’…
[28] Or the reasonable observer may apprehend the flip side:
(b) Will the Court favour the wife so as to avoid looking like the Court is not favouring the former Justice and thus his client?
( … )
[32] … I have formed the view that the administration of justice requires that justice must not only be done but be seen to be done, and, public confidence in the independence, impartiality and integrity of the judiciary must be maintained. …
( … )
[34] It is not necessary for me to resolve … what the reasonable bystander may make of a former judge appearing in the same Court from which their service gave rise to the receipt of a judicial pension.
( … )
[36] Finally, what would … the reasonable bystander make of case law or authorities which the former Justice may urge upon me – but of which he was the author?
( … )
[38] … I am satisfied that a reasonable fair-minded lay observer, cognisant of all relevant facts… might reasonably apprehend I might not bring an impartial and unprejudiced mind to the hearing of the subsequent de facto threshold hearings, and I will recuse myself from the proceeding.”
