Accusing a family court judge of bias is a very serious allegation. Although it’s rare to actually be found to be established, such allegations are taken very seriously by the judicial system because the impartiality of our judges is such a fundamental aspect of the system. Justice not only has to be done, but it also has to be seen to be done, so the public has confidence in the system. Several recent matters in the family courts involve situations where allegations of judicial bias were raised. It’s worth taking a quick look at what these matters reveal.
What is bias?
Bias in the system can be real (“actual bias”) or simply perceived (“apprehended bias”). There are well established tests for each of these types of judicial bias but how the tests are applied varies depending on the facts of the matter.
Actual bias occurs when a judge is shown to be biased in favour of one of the parties or so committed to a certain outcome that any evidence and argument raised will not change the outcome.
Apprehended bias is found to exist when a “fair minded lay observer” would reasonably surmise that the judge was not bringing an impartial, unprejudiced mind to the matter. Where there is doubt over apprehended bias, a judge should disqualify him or herself.
What is a “fair minded lay observer”?
The “fair minded lay observer” is a fictional person created by the system to determine whether there is apprehended bias in a matter. This fictional person is not a lawyer, so they do not need to understand intricate legalities. However, they are supposed to be informed and have a detailed knowledge about the matter to be decided. They are supposed to be a reasonable bystander who does not jump to conclusions easily.
As one of the judges in a recent case, anonymised as Stern & Colli, explained: The apprehension of bias principle admits of the possibility of human frailty. However, accusing a family court judge of bias demands much more than simply arguing the other party was somehow treated more favourably because a judgment went their way.
In this particular case, a father was appealing against parenting orders and one of the grounds of his appeal raised the allegation of apprehended bias. Essentially the father wanted to argue that the trial judge had unfairly been more favourable towards the mother. He said the trial judge had criticised conduct of his while ignoring the same conduct of the mother, and had “ignored” his evidence compared to the mother’s evidence.
But just because a trial judge accepts one party’s evidence over that of the other, or finds one party more credible, does not mean that the judge was “biased” against any party:
[I]t is not the case that the father’s evidence was “ignored”. The plain fact is that the mother’s evidence was accepted, and the father’s evidence was not. That is a quintessential aspect of the task of a trial judge, and her Honour cannot be criticised for undertaking that task, and making the finding that she did…
The simple explanation for these outcomes is that her Honour preferred the evidence of the mother over that of the father in relation to the same. That is an outcome that is plainly open to a trial judge, and in no way demonstrates apprehended bias.
Similarly, the conduct of the parties was differentially treated because “after observing the mother and father in the witness box for a significant period of time”, the trial judge simply found the mother more credible. The appeal judges said:
It is the father’s conduct which is the problem, not the mother’s, and thus it is understandable that her Honour would criticise the father and not the mother.
A second recent matter similarly involved allegations of judicial bias resulting in a matter being decided adversely to one party. In the matter pseudonymised as Akhtar & Gaber, a husband pursued an application to have his appeal judges recuse (disqualify) themselves, alleging that all three bench judges in his appeal had been biased against him. He said the appeal judges did not bring an impartial mind to his matter and “that he has no trust and confidence in our judgment. He also asserts that any fair-minded lay observer would share that belief.” But the first appeal judge to deal with the allegation, Aldridge J, said his previous decision in the matter had been made after he had “applied well-known principles of law to uncontested facts” and that the High Court (whom the husband had later turned to ask for special leave to appeal) had agreed with him and also dismissed the leave application.
A judge’s role in earlier litigation
In this case the husband asserted that it was the appeal judges’ role in his earlier application for leave to appeal which meant they would not bring an impartial mind to his case. But denying that he had pre-judged the outcome, Aldridge J said “there is no reason whatsoever for a fair-minded lay observer to think that I would decide this appeal, on which I have been assigned to sit, other than on its merits”.
The next appeal judge, Watts J, gave the same reasons. The third appeal judge, Austin J, appeared mystified as to why he was being accused of bias, noting that he had “had no prior involvement of any sort in any litigation brought by or against the appellant. He is as unknown to me as I am to him. The affidavit filed by the appellant in support of his application refers exclusively to the content of the judgment given by the Full Court in an earlier appeal as the only justification for my disqualification, even though I had no part in it”.
However, interestingly, despite the fact that apprehended bias does not usually involve situations where previous rulings by a judge in relation to a party might give rise to a perception of apprehended bias, it can in fact happen that a judge will recuse themselves on that basis, for the avoidance of doubt. For example in a matter heard last year the judge disqualified himself and said:
In my Reasons I came to a clear [negative] view about the credit of the husband. I accept that a fair-minded lay observer might reasonably apprehend that I may not be inclined to depart from that view in a subsequent hearing.
Categories of bias
It’s useful to mention that there are four “distinct but overlapping categories covered by the doctrine of apprehended bias”, which are outlined in the Akhtar & Gaber matter by Austin J:
I have no interest in the outcome of the substantive appeal;
No aspect of my judicial conduct is the subject of the appellant’s complaint;
I have no association with any person which could compromise my impartiality in determining the appeal; and
I am not in possession of any extraneous information which might affect the appeal.
This is a good starting point to assess whether factors exist where you could argue there may truly be bias evident in your judicial outcome.
If you have any concerns that the judge hearing your matter is biased, raise your concerns with the trial judge as early in proceedings as possible. However, if a matter is being appealed, the issue of apprehended bias can also be raised as a ground of appeal, when it will be the first ground that the appeal court will deal with.
For family law advice or if you have any concerns regarding perceived bias of a judge, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
