Recusal application granted

Procedure – Recusal application granted due to apprehended bias – Counsel who appeared at trial for the husband was the nephew of a judge scheduled to hear the wife’s appeal as a member of the Full Court

In Zha & Wun [2025] FedCFamC1A 12 (6 February 2025), Howard J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, allowed a wife’s objection to His Honour being listed to sit on her appeal as a member of the Full Court (together with Aldridge & Gill JJ).

The trial was determined by Schonell J who made property adjustment orders in respect of an asset pool that comprised “more than $500 million” ([21]). The wife appealed.  Counsel (Mr Williams KC) had appeared at the trial for the husband but was not briefed to appear at the appeal.

An Appeal Judicial Registrar wrote to the legal representatives and noted that counsel for the husband was the nephew of Howard J and asked whether any objection was taken to his Honour sitting on the appeal. The husband did not object, but the wife did ([6], [8]).

The Court said (from [12]):

“ … The question for consideration is whether or not there exists apprehended bias by reason of the familial connection between Judge and Counsel. … [T]he governing principle was outlined by the majority of the High Court in Ebner [ed. full citation: Ebner v Official Trustee in Bankruptcy [2000] HCA 63] where … their Honours stated (inter alia):

‘ … a 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.’ … ( … )

[18] As to the two limbs of the test stated in Ebner – the first step is readily satisfied … That is, the familial association between the Judge (myself) and the Kings Counsel who appeared for the husband at the trial before the primary judge. … ( … )

[21] … The role of a Kings Counsel appearing on behalf of … (the husband) is significant and substantial. … He ran the case  … He was given a copy of the notice of appeal … I am satisfied that both limbs of the test in Ebner have been satisfied.

[22] … I have come to the conclusion that a fair-minded lay observer might reasonably apprehend that the subject Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide … ”