Antoun v The Queen

FedCFamC1A|2025-09-05

For the reasons that I set out in respect to ground 2, the first proposition of ground 3 is without merit.
In respect to the second aspect of this proposed ground of appeal the primary judge was, in my opinion, not in error in determining that his request to the ICL did not amount to prejudgment of the issues of the spend time arrangements with the father, parental responsibility, or the mother's proposal to change the child's name.
In Kingston & Field (No 2) (2020) FLC 93-986 the Full Court dismissed an appeal contending apprehended bias on the part of the primary judge as a result of comments made during the course of the proceedings. In doing so, at 79,994-79,995 [22]-[25] the Full Court referred to the following authorities:

22. In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 ("Johnson"), the plurality said (at 493):

... At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx...

Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

... the expressions of preliminary and tentative views [by a judge] may sometimes appear to an outsider to indicate prejudgment. Although some [judges] may be hard to shift from tentative opinions, lawyers know that, in most judicial decision-making, the process is a continuous one. Preliminary inclinations do change.

(Footnote omitted)

24. In Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 ("Antoun"), Kirby J said (at [27]):

... it is certainly true that the trial judge's remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

(Footnote omitted)

25. The "fair-minded lay observer", whose objective opinions are the yardstick by which an allegation of apprehension of judicial bias is measured, is taken to be (Royal Guardian at [232]):

...a rational person who is neither complacent nor unduly sensitive or suspicious and...someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.

Many of those same authorities were referenced and a similar approach was taken by the Full Court in Akhtar & Gaber (No. 2) [2021] FamCAFC 28 at [14] and [15] ("Akhtar"). In Akhtar, the Full Court distinguished the facts of that particular case from the facts considered by the High Court in Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51 where the trial was judge was found to have indicated, from the outset, that the party's application would fail: Akhtar at [15].
While it is the case that the primary judge made several comments encouraging the parties to consider settlement options, it was unremarkable that he did so on the basis of the report of Dr C which, on its face, appeared to be comprehensive and considered.
The request to the ICL to draft a minute, for the consideration of the parties, based on the recommendations of Dr C must be seen in the context where the primary judge specifically indicated to the parties that the views of Dr C would be material in the consideration of what orders were in the best interests of the children, but the primary judge did not state that Dr C's views would be determinative (Transcript 5 May 2025 p.3 lines 10-12). In other words, it cannot be said that the primary judge had closed their mind to an outcome that was other than the outcome recommended in Dr C's report.
Accordingly, this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.

Ground 4 - The Decision of the Primary Judge is, in all of the Circumstances, Plainly Wrong

For the reasons that I have set out in respect to the first three grounds of appeal, I am satisfied that the decision of the primary judge dated 6 May 2025 dismissing the application that he recuse himself was correct and this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.
I would add, in respect to this ground of appeal, that a judge should not disqualify himself or herself on the basis of bias or reasonable apprehension of bias unless substantial grounds are established Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [36] and see also Fuller v Fletcher Building Ltd [2024] VSC 712; (2024) 76 VR 276; Storry v Business Licensing Authority [2022] FCA 1321; CPJ16 v Minister for Home Affairs [2020] FCAFC 212.

HAS THE APPELLANT ESTABLISHED SUBSTANTIAL INJUSTICE

In circumstances where I have determined that each of the proposed grounds of appeal lack sufficient prospects of success to justify leave to appeal being granted, it is unnecessary to consider the second aspect of the two-strand test referred to in Medlow.
For completeness, I can indicate, however, that I would not have found that the appellant would suffer substantial injustice by the rejection of her application for leave to appeal. As noted by Aldridge J in Ostap & Sidak, the appellant retains her right to rely upon the alleged apprehended bias as a potential ground of appeal that can be pursued, should she wish, subsequent to the making of final orders.

Accordingly, for the reasons set out in these reasons for judgement the appellants application for leave to appeal is dismissed.
There has been no application for an order for costs by the respondent or the ICL.

I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.

Circuit and Family Court of Australia Act 2021

Circuit and Family Court of Australia (Family Law) Rules 2021

Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2

Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7

Charisteas v Charisteas  (2021) 273 CLR 289; [2021] HCA 29

Cheng v Motor Yacht Sales Australia Pty Ltd (2022) 108 NSWLR 342; [2022] NSWCA 118

CNY17 v Minister for Immigration and Border Protection and Another  (2019) 268 CLR 76; [2019] HCA 50

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

CPJ16 v Minister for Home Affairs [2020] FCAFC 212

Ebner v Official Trustee in Bankruptcy  (2000) 205 CLR 337; [2000] HCA 63

FKP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 19

Fuller v Fletcher Building Ltd (2024) 76 VR 276; [2024] VSC 712

GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 150

Isbester v Knox City Council  (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Michael Wilson & Partners Ltd v Nicholls  (2011) 244 CLR 427; [2011] HCA 48

New South Wales v JR [2024] NSWCA 308

Storry v Business Licensing Authority [2022] FCA 1321

It is certainly the case that the primary judge actively attempted to engage the assistance of the ICL to encourage the parties to engage in settlement negotiations. An objective bystander would appreciate that such encouragement is very much part of modern judicial practice and recognises the considerable public benefit of matters being resolved by consent, rather than protracted litigation. The litigious path often results in personal emotional cost to the parties and presents a substantial financial impost to the parties and the public.
In that respect, it has long been accepted that the resolution of disputes by compromise, rather than litigation, is in the public interest: Jireh International Pty Ltd v Western Export Services Inc (No 2) [2011] NSWCA 294 (Macfarlan and Young JJA, Tobias AJA). This is particularly so in the case of disputes relating to children, in circumstances where neither party is contending that the outcome of the proceedings will present a risk to the child.
For these reasons I am satisfied that the primary judge correctly applied relevant principle in the application that he recuse himself from the proceedings. Accordingly, this proposed ground of appeal lacks sufficient prospects of success to justify leave to appeal being granted.

(2021) 62 Fam LR 190

(2022) 108 NSWLR 342

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