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Apprehended Bias: What happens if you feel your judge is biased?

By May 5, 2020February 23rd, 2024No Comments

Sometimes a party in a family law litigation matter feels there is judicial bias against them. Although bias is rarely actually found to be established, concerns over bias are taken very seriously because the impartiality of the judiciary is a fundamental component of our judicial system. The public needs confidence in the administration of justice and the decisions that judges hand down. Not only must justice be done, but it must be seen to be done.

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.

A recent case heard in the Family Court in Sydney, given the pseudonym of Khalif & Khalif and Anor, concerned an application by a husband that the judge recuse (disqualify) himself from hearing outstanding applications on the grounds of apprehended bias. The litigation involved both parenting matters and a property settlement, and the judge ultimately recused himself from hearing both. The judge had made adverse findings against the husband in earlier proceedings, challenging his credibility and finding that certain parts of the husband’s evidence were unreliable. The judge said he had “no confidence that I can rely upon the husband’s evidence”:

In my Reasons I came to a clear 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.

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 bias, in this case, the judge did recuse himself on that basis, for the avoidance of doubt.

You can read the whole case here.

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.

If you need family law advice, 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.

You might also like to read our article on whether family court judges are biased against men, and our article about a case deciding whether an Independent Children’s Lawyer was biased.


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