Can You Remove a Biased Judge? Recusal Applications in Australian Family Law

📋 What You’ll Learn in This Article

Can a judge be removed from your family law case? What does “judicial bias” actually mean under Australian law and how do you prove it? This article explains what a recusal application is, how courts decide whether a judge should step aside, and what two recent Federal Circuit and Family Court cases tell us about when recusal applications succeed, and when they don’t. Whether you’re facing a trial or simply want to understand your rights, this article gives you the practical knowledge you need.

Judges aren’t perfect. They tend to be the best of us when it comes to being a neutral observer, but they are human and sometimes they make mistakes and bring in bias. When this happens, it can lead to horrible miscarriages of justice. This sense of injustice is felty to the extreme when it happens in the Family Court, a place of intense emotions and life-changing outcomes. Thankfully, the Court has inbuilt measures to protect parties from any injustice. Two major security measures are appeals and recusal applications.

An appeal is a process where you apply to the Court to review the trial and see if the trial Judge did anything wrong or applied any law poorly. A recusal application is an application within the course of a trial to have the Judge recuse themselves.

When a Judge recuses themselves, it means they step back from the trial and allow another Judge to oversee it. The most common grounds for this are actual and apprehended bias. Actual Bias involves proving the actual thoughts or mindset of the Judge is biased. Apprehended bias is when 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”.

❓ FAQ: What’s the Difference Between Actual Bias and Apprehended Bias?

Actual Bias: Harder to prove. You must demonstrate that the judge’s actual thoughts or mindset were biased against you. Evidence might include statements the judge made revealing a predetermined view.

Apprehended Bias: More commonly argued. The test is objective; you don’t need to prove the judge was actually biased. Instead, you must show that a fair-minded, informed observer watching the proceedings could reasonably conclude the judge might not decide impartially. This is the basis for most recusal applications.

Assessing apprehended bias can involve a number of steps including looking at the words and tone employed by the Judge, looking at their rulings to see if they are constantly in favour of one party, or even something as simple as the body language of the Judge.

Case Law

The case of Acheson & Begbie [2023] FedCFamC1F 704 sets out the guidelines for Judges to follow when approaching a apprehended bias hearing. This case notes that there are four categories of apprehended bias that a Judge must assess:

1. Disqualification by interest (the Judge has would have an interest in one party succeeding over the other);
2. Disqualification by conduct (the Judges actions have shown bias);
3. Disqualification by association (the Judge knows one of the parties or someone close the parties); and
4. Disqualification by extraneous information (the Judge comes to know an inadmissible fact that will sway their opinion).

The first step of assessing apprehended bias is to identify what might impact the Judge’s decision. This step is a matter of identifying facts or evidence rather than concluding how they might affect a Judge. This evidence, as per Acheson & Begbie, can include things such as how the Judge does or doesn’t allow certain questions or lines of questioning, their reactions to questions, their tone, and their body language.

The next step apparent from this Judgement is to look at the evidence in context and this can take many forms:

Judicial Behaviour in Acheson & Begbie

One of the asserted instances to show bias was the Judge allowing the mother’s counsel to upset the father in their questioning. This was as the questioning resulted in the father agreeing that he had been “dishonest”, “mean”, and “manipulative”. However, as the Judge noted this was not objected to by the father’s counsel, additionally it was relevant to the proceedings and false assertions the father had made.

The father also asserted that the Judge asking certain question during his cross-examination showed bias. It must first be noted that it is the right of a Judge to ask appropriate questions, whether that is for their own clarity or to keep the matter where it should be. In this case the Judge asked a question to clarify a discrepancy in the father’s testimony. Her honour stated in response to the allegation that this was improper that that type of question “fall squarely into those type of questions which a trial judge might ask to clarify the evidence she has heard in the case”.

The Judge also noted that a statement made during trial that the father’s responses to questions were “deliberately missing the point” were appropriate. She went further to say that they are not only appropriate, but it is proper “for a judge to intervene where a witness is non-responsive” because it is “not proper for counsel to argue with or direct a witness”.

Another raised issue is that the father’s counsel asserted the judge roller her eyes. Judges are human and experience frustration and “frustrations are almost always better masked than revealed but judges are human and will not always function as they would ideally chose”. In this case the Judge could not remember whether she rolled her eyes or not but accepted it to be true. However, she noted any frustration must be measured by fact and degree and a single instance of frustration when the Judge and counsel “were at offs about the acceptable parameters for re-examination” is not sufficient that a lay minded observer would apprehend bias.

Acheson & Begbie highlights the process and is a great example of when people assume bias when things don’t go their way.

📌 Key Takeaway: What Acheson & Begbie Tells Us About Recusal Applications

This case shows that a judge asking clarifying questions, making comments about a witness being non-responsive, or displaying a momentary expression of frustration does not, by itself, establish apprehended bias. Recusal applications will not succeed simply because a party feels the proceedings are going against them. To succeed, you must point to specific conduct that would lead a reasonable observer to question the judge’s impartiality, and that conduct must be assessed in its full context, not in isolation.

This isn’t to rule out cases of where apprehended bias can be found. One such case is the case of Spargo & Spargo [2025] FedCFamC1A 174

Spargo & Spargo is an appeal over a recusal application where the judge refused to recuse themselves. This issues in this case were as follows:

1. The primary judge had departed from her judicial role in an adversarial trial and would no longer assess the evidence and arguments “from a detached distance”;
2. The primary judge had cross examined in a manner that went beyond her role;
3. The primary judge “entered the arena” for periods of time where she assumed the role of a party;
4.  The primary judge “assumed the role of the mother’s advocate”;
5. The primary judge questioned the father in an “unduly aggressive and intimidatory” manner;
6. The primary judge excessively interrupted the cross-examination of the father;
7. The primary judge made comments of a negative tone and manner towards the father; and
8. The primary judge made comments to give the impression of “mutual association of allegiance and secrecy” with the mother.

At first instance the Judge dismissed the application with reasons stating:

1. She had “not made any decisions in the substantive parenting proceedings”
2.  The father “must show that the behaviour about which he complains shows that I have prejudged the matter against him” which he hadn’t done
3. The father “could point me to that showed I had prejudged the matter against the father or made any decision in the matter”
4. “I have not evaluated the evidence. I have made no findings. I have not offered a preliminary view. I have not issued any interim judgment”
5. She “not been denied procedural fairness” because he had “not been prevented from running his case”
6. There was no evidence that “showed the conduct of the matter was procedurally unfair”.

 She additionally in comment to the recusal application stated that the father “seem[ed] to ignore the powers I have as a judge to hear this matter and control the proceedings”.

On appeal Justice Strum commented initially that the matter of a recusal application was not determined on what showing what had happened. Instead, as Justice Strum noted the appropriate test was that “judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”. It is a matter of fairness that the judge should not have a risk of being biased.

Judicial Involvement

Whilst a judge has the power to alter the proceeds, especially when it comes to limiting questions that aren’t allowed, or asking clarifying questions top the get the truth of the proceedings, they are not allowed to enter “the arena”. In short this means they cannot take the role of assisting a party or acting as a third party to the proceedings.

❓ FAQ: What Does It Mean for a Judge to “Enter the Arena”?

In adversarial legal proceedings, the judge’s role is to act as a neutral referee, not a participant. A judge “enters the arena” when they stop being a passive evaluator of evidence and start actively assisting one side. This can include suggesting objections for a party’s counsel, asking repeated leading questions that favour one party, blocking lines of questioning that are unfavourable to a party, or making dismissive comments about one party’s evidence. In Spargo & Spargo, the judge’s conduct crossed this line in several ways and the appeal court found that a reasonable observer could have concluded the judge had assumed the role of the mother’s advocate.

In this case it looked a number of ways, including suggesting objections to the counsel for the mother against questions asked by the father. However more notably on the case of apprehended bias is when a judge prevents questions being asked about facts in issue. In this case a fact in issue was alcohol consumption. A response to a question regarding alcohol brought up the mother’s “mum’s group”, the judge prevented further questions on that topic with the line “what happens at mother’s group stays in mother’s group”. Similarly, when evidence was adduced about the mother drinking whilst breastfeeding the baby the judge made the comment “Whoop-de-do”.

On appeal this was seen to be “most unfortunate” that these things were said. This example shows a judge’s conduct cannot have “an element of protection” for a party, or connote “a sense of commonality” between the judge and party.

A judge has the ability to ask questions to get to the truth of the matter. However, this power is limited. This case shows it is inappropriate for a judge to judge to repeatedly the same questions until they “elicit answers with which [they were] apparently satisfied”.

❓ FAQ: When Should I Consider Making a Recusal Application?

A recusal application is a serious step that should only be taken on strong legal advice. It is worth discussing with your solicitor if you observe the judge making repeated rulings against you without clear legal reason, the judge interrupting or cross-examining you or your witnesses aggressively, the judge making dismissive or sarcastic comments about your evidence, the judge suggesting or prompting objections for the other side, or the judge revealing a prior connection to the other party or their representatives. Bringing a recusal application without proper grounds can reflect poorly on your case. If you believe any of these circumstances apply to you, seek legal advice immediately — before the trial continues.

Conclusions

Recusal applications are a necessary part of the Court system. They protect parties from unfair proceedings and unjust outcomes. As per Acheson and Begbie this does not mean that a party will make the grounds of a recusal application just because they feel they didn’t say everything they wanted to, or because a Judge asked questions that made them uncomfortable.

A recusal application needs to show that there has been procedural unfairness, or that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter.” This is not always easy, but Spargo and Spargo shows that this can be done. A Judge cannot “enter the arena”, or deny a party from the procedural fairness that the law demands they are given.

Trials are expensive, difficult, and challenging events. It is important to remember that Judges are human too and sometimes make mistakes and allow emotions or something else to momentarily change their impartiality. If you are going to the Family Courts, it is important to have independent advice to ensure that you are best prepared to give your arguments. This can stop you from making costly mistakes, such as misjudging if a Judge should recuse themselves. A family law solicitor provides this advice, with expert experience and can help you navigate the landscape of Court and achieve the best possible results.