Barton v Walker

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

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

Eccheli & Eccheli [2024] FedCFamC1F 234

Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267

Finch & Finch (2020) FLC 93-949; [2020] FamCAFC 60

Galea v Galea (1990) 19 NSWLR 263

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

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

Kartinyeri v Commonwealth (1998) 156 ALR 300; [1998] HCA 52

Kingston & Field (No 2) (2020) FLC 93-986; [2020] FamCAFC 235

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17

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

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122

Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39

Reid v Commercial Club (Albury) Ltd [2014] NS7WCA 98

Rouvinetis v Knoll [2013] NSWCA 24

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The husband's oral application for recusal made 29 April 2025 is dismissed.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 29 April 2025, the proceedings were listed to hear the parties' competing applications for interlocutory relief and for delivery of judgment in relation to the husband's application for a stay of orders made 4 April 2025 pending an appeal.
2. Following delivery of judgment, the husband's solicitor made an oral application that I recuse myself from further hearing the proceedings on the grounds of bias. Given the breadth of the contentions as the foundation for the recusal involved both assertions of actual and apprehended bias, it is important to provide some historical context.

1. The husband commenced proceedings pursuant to Pt VIII of the Family Law Act 1975 (Cth) ("the Act") on 21 February 2024.
2. The matter first came before this Court on 6 March 2024 when I made orders for the wife to file her Response to the husband's Initiating Application and affidavits in response to the husband's interlocutory relief and listed the hearing of those applications on 2 April 2024.
3. On 2 April 2024, I heard the competing applications. The wife sought amongst other relief spousal and adult child maintenance, the payment of outgoings on a property at Suburb E and to retain the proceeds of sale of three properties. The husband for his part sought amongst other relief to retain the proceeds of sale of all three properties. The parties were agreed the wife would remain in occupation of the property at Suburb E while the husband would have occupation of a property in Queensland pending its sale.
4. On 12 April 2024, the Court delivered reasons for judgment as recorded in Eccheli & Eccheli [2024] FedCFamC1F 234. Neither party was entirely successful. In summary, the wife's application for periodic spousal and adult child maintenance was refused, the wife retained the proceeds of sale of two properties estimated to be approximately $1,084,000 while the husband received the proceeds of sale of one of them estimated to be $974,000 and was ordered to pay the outgoings and mortgage payments on the Suburb E property occupied by the wife.
5. The matter next came before me on 7 June 2024. On that day, I made orders by consent for disclosure, the appointment of expert real estate valuers, and for a single expert to undertake a valuation of various corporate entities with a future listing date of 6 December 2024.
6. On 2 December 2024, the husband filed an Application in a Proceeding seeking various interlocutory orders.
7. On 6 December 2024, I made orders by consent for the appointment of a particular person to undertake valuations of real estate in both New South Wales and Queensland, the process by which the identity of a mediator could be confirmed, and orders in relation to the transfer of registration of motor vehicles. I also made an order for the wife to file and serve a Response to the husband's Application in a Proceeding.
8. The matter next came before me on 14 March 2025. On that occasion, the husband's solicitor advised that the husband had recently changed legal representatives. The matter was stood down and the parties prepared an agreed timetable for the hearing of the outstanding interim applications. Orders were subsequently made by consent listing the then outstanding interlocutory applications for an interim hearing to take place on 4 April 2025. Relevant to aspects of the application for recusal, the orders provided for the husband to file and serve his application and affidavits by 21 March 2025.
9. Despite the orders for the husband to file his affidavit and application having been made by consent on 14 March 2025, the husband's solicitor by email to my associate at 11.25 am on Friday 21 March 2025 sought an extension until Tuesday 25 March 2025 for the husband to file and serve his affidavit.
10. Notwithstanding seeking such extension, the husband instead chose to file on 21 March 2025 an Application in a Proceeding and affidavit that sought new relief, not that contemplated by the 14 March 2025 orders.
11. Despite seeking an extension until 25 March 2025, no affidavit in reply was filed on 25 March 2025.
12. On 27 March 2025, at a time after the date sought for extension, the husband's solicitor was advised that an extension would not be granted.
13. On 4 April 2025, the matter was listed for interim hearing. The husband's solicitor submitted that her client (despite the clear terms of the orders which had been consented to by the same solicitor on 14 March 2025) was not in a position to meet the wife's application. Part of the wife's relief that day sought the husband vacate a property in the wife's name so that it could be sold through an agent she had retained. The husband's solicitor indicated the husband would cooperate with the agent.
14. Following submissions, orders were made pursuant to s 77 of the Act for the husband to pay to the wife $20,000 by way of urgent spousal maintenance in two instalments, for disclosure, appointment of a real estate agent to sell a property, for the husband to meet the outgoings on that property and for him to vacate the property within seven days. Otherwise, the balance of the applications was adjourned on the husband's application to 29 April 2025.
15. On 14 April 2025, the husband filed an appeal against the orders made on 4 April 2025.
16. That same day, the husband filed an Amended Application in a Proceeding seeking a stay of the 4 April 2025 orders.
17. On 16 April 2025, the Court heard the husband's Amended Application in a Proceeding filed on 14 April 2025 seeking a stay. Judgment was reserved.
18. On 29 April 2025, the Court delivered reasons in relation to the husband's Amended Application in a Proceeding seeking a stay and dismissed the stay Eccheli & Eccheli (No 3) [2025] FedCFamC1F 267 ("Eccheli (No 3)"). The husband's solicitor then made an oral application for recusal.
19. During the course of submissions in reply for the oral recusal application, the husband's solicitor sought an adjournment to obtain the audio of the hearing on 4 April 2025 as it was considered necessary to demonstrate what was said to be the "tone" used by the Court in support of an assertion that the husband's solicitor felt bullied. It was submitted this would be available within five days. I granted the husband an adjournment until 8 May 2025 and reserved the wife's costs.
20. On 8 May 2025, the husband's solicitor advised that she still had not received the audio recording but was advised it would be available at 10.00 am on 14 May 2025. The matter was again adjourned, on the husband's application, to 1.30 pm on 14 May 2025 to hear submissions solely as to "tone" arising from the hearing on 4 April 2025.
21. On 14 May 2025, the husband's solicitor tendered a two-page document described as husband's short submissions as to tone ("Exhibit 1"), a marked-up transcript containing what the husband's solicitor said were the "comments as to tone" which included references that were said to indicate "passive aggressive", "snarls", "dismissive" and "demeaning" ("Exhibit 2") as well as an audio recording ("Exhibit 3"). Beyond reliance on the documents, no other submission was made. The wife's senior counsel made some short submissions in reply.

1. The oral application contended that the fair-minded lay observer might conclude that I might not bring an impartial mind to the determination of the matters before me. The husband's solicitor contended that I displayed not just apprehended but also actual bias.
2. During the course of the oral application, the husband's solicitor enumerated the various assertions said to ground the application. There is a degree of repetition and overlap between them including contentions that some were demonstrative of apprehended and others actual bias. During the course of submissions, the husband's solicitor sought to raise further matters said to give rise to an apprehension of bias which, after questioning, were abandoned.
3. The assertions as to apprehended bias were as follows:

(a) The Court refused to grant the stay sought by the husband in the Application in a Proceeding filed 14 April 2025.

(b) On 4 April 2025, the Court permitted the wife to rely on documents that had been filed outside of directions but did not grant an extension as sought by the husband in an email dated 21 March 2025 which he contends constituted a denial of procedural fairness.

(c) For the reasons enumerated in Grounds 6 and 7 of the husband's Notice of Appeal filed 14 April 2025 which are as follows:

(a) The Judge gave 'advice' to the Respondent Wife in hearing dated 14 March 2025, namely that the '[F Street] Property' is in her name and that she does not require an Order for sale, notwithstanding it was not a question for determination at the hearing.

(b) The Judge was unreasonable to make an order that gave the Appellant only 7 days to pack possessions and vacate his primary place of residence notwithstanding Order 3 made on 12 April 2025 had not been discharged and gave the Husband exclusive possession and use of the property until it was sold.

(c) The Judge was unreasonable by refusing the Appellant a short extension of 2 business days to file his affidavit and amend his Application in a Proceedings, notwithstanding the Respondent Wife was 52 days out of time to file her Reply and affidavit 52 days out of time.

(d) The Judge granted orders sought by the Respondent Wife in circumstances the Appellant was denied an opportunity to respond to the Respondent Wife's affidavit which resulted in haphazard instructions from the bar table.

(e) The Judge did not make a ruling on the admission of the Respondent Wife's Reply and late affidavit.

(f) The Judge demonstrated a dislike towards the Appellant.

(g) The Judge disregarded evidence that the Respondent Wife orchestrated a position of being in dire financial need requiring urgent maintenance payments notwithstanding evidence of transferring at least $197,189.35 to her adult children and daughter's partners in a period of 12 months.

1. The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice:

(a) The Judge made Orders on 4 April 2025 upon orders sought in a document titled "Case Outline on behalf of the Respondent Wife" filed 5.23pm on 3 April 2025, thus denying the Appellant reasonable time and procedural fairness for an opportunity to respond, which also resulted in the Appellant's lawyer seeking haphazard instructions from the bar table.

(b) On 4 April 2025, the Appellant objected to the Respondent Wife's affidavit of 11 March 2025 and her Reply from being admitted into evidence on the basis it was filed out of time. The Respondent Wife was not previously granted leave for it to be filed out of time on hearing on 14 March 2025, the Appellant was not afforded the opportunity to respond to her affidavit, and the Judge accepted the affidavit into evidence.

(c) The Appellant was refused a 2- business day extension to file an Amended Application in a Proceeding and affidavit in response to the Respondent Wife's late affidavit and Reply.

(d) The Judge made orders against the Appellant with reliance upon the Respondent Wife's affidavit yet denied the Appellant an opportunity to respond to the Respondent Wife's affidavit and which also resulted in the Appellant's lawyer seeking haphazard instructions from the bar table.

(e) The Judge disregarded the Appellant's request that the disclosure questions be limited to 20 questions in accordance with Rule 6.22 (3)(b).

(f) The Judge disregarded the onerous nature of the Respondent Wife's request for disclosure, that were not required to be answered by the Appellant because they fell into the category of Rule 6.06 (4)(b).

(d) On 16 April 2025, I did not properly read and consider the husband's Costs Notice which it was said "supports my client's concern that if you didn't read the costs notice, which did set out estimates of an appeal, you're not considering his other material that's before you" (Transcript 29 April 2025, p.12 line 35)

(e) The Court made an urgent spousal maintenance order in circumstances where there was no evidence that the husband could afford spousal maintenance.

(f) In the reasons for judgment delivered on 12 April 2024, the Court did not believe the husband's evidence.

(g) The husband's solicitor felt bullied on 4 April 2025.

(h) At [6] of the reasons for judgment delivered 29 April 2025, the Court had regard to documents that were not in evidence before it, including affidavits and in particular a Case Outline of the wife filed on 28 March 2024 whilst not referring to the husband's Case Outline and in doing so acted as the advocate for the wife.

(i) At [33] of the reasons for judgment delivered 29 April 2025, the Court misinterpreted the husband's Financial Statement and took the husband's evidence into account in a negative light.

1. The matters said to give rise to actual bias were:

(a) Ground 6(b) of the Notice of Appeal which records as follows:

6. The Judge was biased:

(b) The Judge was unreasonable to make an order that gave the Appellant only 7 days to pack possessions and vacate his primary place of residence notwithstanding Order 3 made on 12 April 2025 had not been discharged and gave the Husband exclusive possession and use of the property until it was sold.

(b) Ground 6(f) of the Notice of Appeal which records the judge demonstrated a dislike towards the Appellant.

1. The mere recitation in a submission of a contention of actual or apprehended bias or, as in this case, a series of contentions is not of itself sufficient. Such applications must be made on sure and firm grounds. As the High Court observed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ("Ebner") at [20]:

...However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

1. While in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 Mason J at 352 observed:

...Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

(Footnotes omitted)

1. A judge should not recuse themselves unless there has been established a substantial basis for doing so, the authorities variously describing it as being "firmly established" and a decision to recuse is not one that is to be "reached lightly" (Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Bienstein v Bienstein (2003) FLC 93-124). To do otherwise is an "abdication of judicial function" and an "encouragement of procedural abuse" (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; Kartinyeri v Commonwealth of Australia (1998) 156 ALR 300).
2. To establish apprehended bias, the moving party must demonstrate objectively two things. First, what it was that was said by the judge that might give rise to an apprehension that the judge might decide the case other than on its merits, and second, and of no less significance, an articulation of the logical connection between what was said and the possibility, real not remote, of a "feared deviation from deciding the case on its merits" (Ebner).
3. As their Honours observed in Ebner, to succeed on a ground of apprehension of bias, the appellant must establish that:
   1. ... 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.

1. The fair-minded lay observer is endowed with certain attributes. While they are not a lawyer and are not taken to know the law (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488) they are presumed to know that judges ordinarily act impartially (Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 299); they have common sense (Barton v Walker [1979] 2NSWLR 740) the lay observer is not unduly sensitive or suspicious (Rouvinetis v Knoll [2013] NSWCA 24), knows that judges may make interventionalists comments not because they have prejudged a case but to better understand the case or to efficiently manage the litigation (Concrete Pty Ltd v Parramatta & Developments [2006] HCA 55; (2006) 229 CLR 577), have an understanding of the actual circumstances that led to the making of the decision and its context (Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135) and would not reasonably apprehend bias from an exchange even emotional taken out of context or in isolation (Galea v Galea (1990) 19 NSWLR 263).
2. Part of the husband's contentions as to apprehended bias relied upon matters set out in Ground 7 of the husband's Notice of Appeal which are asserted to be denials of procedural fairness. They were not argued as such but rather as indicative of apprehended bias by way of prejudgment.
3. While not articulated with any clarity, given they are asserted to be a denial of procedural fairness they will be considered as such, particularly where they involve a repetition of earlier assertions. That said, procedural fairness requires each party be given an adequate opportunity to be heard and to present their case (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 582). Its focus is on the process not the result.
4. In Finch & Finch [2020] FamCAFC 60; (2020) FLC 93-949, in the context of a discussion as to the principles applicable where there was a complaint about judicial conduct giving rise to a contention of a lack of procedural fairness, the Full Court observed as follows:

1. In Galea v Galea (1990) 19 NSWLR 263 at 281-282 ("Galea"), Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles in relation to excessive judicial interference, as follows: 1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA). 2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, greater latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane C Ltd v Ministry of Transport. 3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion": see Sir Robert Megarry, "Temptations of the Bench" (1978) 16 Alta L Rev 406 at 409; see also U Gautier, "Judicial Discretion to Intervene in the Course of the Trial" (1980) 23 Crim LQ 88 at 95-96 and cases there cited. 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626; see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117). 2. This statement of principle is widely accepted: see Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 ("Royal Guardian"); Huda & Huda and Laham [2018] FamCAFC 85; (2018) FLC 93-837 and Jorgensen v Fair Work Ombudsman [2019] FCAFC 113; (2019) 371 ALR 426 ("Jorgensen"). 3. Further, the following principles may be distilled from the previous authorities in relation to excessive judicial intervention:

(a) Although it may overlap with ostensible bias, excessive judicial intervention leading to a lack of procedural fairness is a separate basis of appealable challenge (RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 625; Royal Guardian at [35]-[39] and Jorgensen at [95]); > > (b) A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal (Royal Guardian at [30]-[33] and [255]); > > (c) The evaluation of whether interventions are excessive involves an assessment and balancing of the appropriate role and limits of judicial engagement and management, with the need for the appearance of detachment, and the provision of fairness (Royal Guardian at [18]; Royal Guardian at [171] citing Michel v The Queen [2010] 1 WLR 879 ("Michel") and Jorgensen at [102]); > > (d) Inept representation may justify greater judicial intervention, in order to ensure the proper use of court resources, and avoid delay or unnecessary prolongation of the hearing (Royal Guardian at [38]); > > (e) Nonetheless the judge must not assume the role of advocate, or be unduly intimidatory, interventionist or directionist, nor unduly press so-called "preliminary views" (Royal Guardian at [220]; Royal Guardian at [17] citing Michel and Royal Guardian at [163] citing Denning LJ in Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55); and > > (f) The number, frequency and duration of the judicial interventions will be relevant, as will their nature and context (including the stage of the trial), content and manner of delivery (including tone of voice) (Royal Guardian at [164] citing Galea).

5. Whilst apprehended bias focuses on the objective, actual bias focuses on the subjective. A necessary inquiry is an assessment of the state of mind of the judge (Michael Wilson and Partners Ltd v Nicholls (2011) 244 CLR 427 at [33]).
6. An applicant asserting actual bias must establish that the judge's state of mind was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]).
7. Whilst the concepts of actual bias, apprehended bias and procedural fairness are all quite different, little if any attempt was made to differentiate between them.

1. Given the seriousness of an assertion of actual bias, challenging as it does the judicial oath, it will be dealt with first. The assertion of actual bias has at its core that an order was made for the husband to vacate a property within seven days and that I showed dislike towards him.
2. Actual bias must be firmly established. An applicant alleging actual bias must establish either "the subjective motives, attitudes, predilections or purposes of the decision-maker" (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Kirby J at [111]) or that such an inference can be drawn from the circumstances or established objective facts (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) per Kirby J at [125]).
3. The NSW Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NS7WCA 98 observed:
   1. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 (Sun v Minister) at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97]...
4. Here, there was a bare assertion and no more. There was no attempt by the husband to demonstrate the requisite elements. Rather, what was done was to just cast an assertion without any supporting submission. Actual bias is not established by merely pointing to an adverse determination or a word as meaningless as 'dislike' uncoupled by a submission.
5. In circumstances where the husband's solicitor does not give such a grave assertion, a submission renders its consideration as a serious submission difficult if not impossible. In the absence of a submission demonstrating the requisite elements and clearly proving actual bias, I decline to recuse myself on the ground of actual bias.

ASSERTIONS AS TO APPREHENDED BIAS AND DENIAL OF PROCEDURAL FAIRNESS

1. In considering each of the various contentions advanced by the husband constituting apprehended bias, the fair-minded lay observer would be conscious of the circumstances in which the Court had dealt with the applications of the parties up to the time of the recusal application including:

(a) In the Reasons for judgment delivered 12 April 2024 neither party had been totally successful.

(b) No appeal had been lodged by any party against the orders made 12 April 2024.

(c) At the request of the parties the Court made orders by consent on three occasions between 12 April 2024 and 16 March 2025.

(d) On 16 March 2024, the husband's solicitor advised that Court that the husband intended to reply to the wife's Response and affidavits filed on 11 March 2025.

(e) On 4 April 2025, in circumstances where the husband contended, he was unable to meet all of the wife's relief, the Court granted the husband an adjournment.

(f) On 16 April 2025, despite contending in a Notice of Appeal filed two days earlier apprehended bias, the husband did not object to the Court hearing his application for stay.

1. Given many of the grounds overlap and are repetitive, those that are will be dealt with together.

That I refused to grant the stay sought by the husband in the Application in a Proceeding filed 14 April 2025.

1. Beyond its recitation, the husband fails to identify why the fair-minded lay observer conscious as he is that judges are required to make decisions and where he is presumed to know that judges are bound to act impartially might reasonably apprehend that by refusing to grant a stay that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.
2. Only the most unduly sensitive and suspicious could conclude, from dismissal of an application, prejudgment.

**That on 4 April 2025 I permitted the wife to rely on documents that had been filed outside of directions but did not grant an extension as sought by the husband in the email dated 21 March 2025 which constituted a denial of procedural fairness.

Ground 6 (c) The Judge was unreasonable by refusing the Appellant a short extension of 2 business days to file his affidavit and amend his Application in a Proceedings, notwithstanding the Respondent Wife was 52 days out of time to file her Reply and affidavit 52 days out of time.

Ground 6 (d) The Judge granted orders sought by the Respondent Wife in circumstances the Appellant was denied an opportunity to respond to the Respondent Wife's affidavit which resulted in haphazard instructions from the bar table.**

1. The fair-minded lay observer is conscious of the context and the circumstances in which orders have been made.
2. At the listing on 14 March 2025, the husband's solicitor advised the Court that she had recently come into the proceedings and sought leave to amend the husband's Application in a Proceeding to seek orders for a sale of the Suburb E property on an urgent basis and to file a consolidated affidavit which the solicitor said would also reply to the response "that the wife has provided only just a few days ago" (Transcript 14 March 2025, p. 3 line 11).
3. After some further submissions, the transcript reveals the parties were directed in the following terms:

HIS HONOUR: ...what I will do is direct you and Ms Burrows to go outside, you're to formulate a document that records all of the relief that each of you are seeking on an interlocutory basis, and it may well be that when you come back in with that document you will get a hearing date in the next two or three weeks.

(Transcript 14 March 2025 p. 6 line 33 - line 37)

1. The parties thereafter went outside and approximately two hours later appeared back before the Court with a Minute of Orders containing their agreement. The orders provided as follows:

1. That these proceedings be listed for interim hearing on 4 April 2025.

1. That the husband shall file and serve an Amended Application in a Proceeding and affidavit by 21 March 2025.
2. It is noted for the purposes of the interim hearing the wife seeks Orders in accordance with the Response to Application in a Proceeding filed 11 March 2025.
3. That Orders be made in accordance with Order 6 of Response to Application in a Proceeding filed 11 March 2025 with "72 hours" amended to read "by 28 March 2025".
4. That Orders be made in accordance with Orders 28 and 29 of the Response to Application in a Proceeding filed 11 March 2025.
5. It is noted for the purposes of complying with the preceding Order, the wife has caused the number plates of the said vehicle to be handed in at [...] Services NSW.
6. That the solicitors for the wife shall cause the disclosure material previously provided to the husband's former solicitors by electronic means to be provided to the husband's current solicitors by 28 March 2025 save for any documents provided in hard copy.

1. At 11.25 am on 21 March 2025 the husband's solicitor emailed my associate requesting "a short extension to file and serve the husband's affidavit to Tuesday, 25 March 2025".
2. The email makes clear that it was sent without the consent or approval of the wife's solicitor.
3. Communicating with the Court in such a way is inappropriate. In R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VicRp 10; [1973] VR 122 at 127, McInerney J said:

...save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party.

1. Why, in those circumstances, the husband presumed he would get an extension without the consent of the other side and without following the proper approach of filing an application is unexplained.
2. As it was, despite seeking such an extension, the husband filed an Application in a Proceeding and an affidavit at 2.28 pm that day. Those documents did not comply with the direction but instead sought an urgent injunction restraining the wife.
3. Despite what the Court was told on 14 March 2025 about an amendment to the husband's application and the filing of a consolidated affidavit in reply, neither the application nor affidavit filed that day accorded with what the husband's solicitor told the Court the husband wanted to do, nor was it in compliance with the orders the husband had consented to seven days earlier.
4. Notwithstanding seeking an extension until 25 March 2025, the husband elected to file no documents in accordance with the extension he sought. The Court responded to the husband's solicitor's request on 27 March 2025, 48 hours after the time in which he said he would file his material, declining an extension.
5. On 3 April 2025, the husband filed a further affidavit and Financial Statement which again did not address all of the wife's relief nor comply with the orders.
6. The assertion the husband was denied an opportunity to respond to the wife's affidavit is misconceived and erroneous. The orders of 14 March 2025 were made by consent and the husband failed to comply with them. He also failed to comply with the extension he sought by 25 March 2025 and when he finally filed an affidavit on 3 April 2025 that also failed to comply with the orders made weeks earlier.
7. Beyond its recitation, the husband fails to identify any prejudgment.
8. No application was made that day or on 14 April 2025 that I recuse myself. The husband's election to remain silent constitutes a waiver (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568).

That the husband's solicitor felt bullied on 4 April 2025.

1. The test for apprehended bias is not based on the subjective assessment of the husband's solicitor. The test is objective.
2. The husband's solicitor identified from the audio recording of 4 April 2025 what are said to be approximately 65 instances of "tone" that were said to be apposite to the assertion of apprehended bias. Exhibit 2 references in various places the husband's solicitor's interpretation of the way in which I spoke saying that I at various times was "impatient and interjected/cut off Burrows", "tense", "passive aggressive", "sarcasm", "intimidating", "snarls", "abrupt", "sarcastic", "dismissive", "demeaning", "fed-up", "belittling", "heckling/interrogation", "engaging in cross-examination of Burrows" and "confronting" (Exhibit 1).
3. Exhibit 1 contends that "the tone may be construed by a fair-minded person as apprehended bias" and that the various descriptions referred to above "amounts to Burrows feeling bullied".
4. The vast bulk of the instances relate to what the husband's solicitor describes as being "cut off" which the transcript reveals were no more than attempts going "to the clarification of ambiguity or misunderstanding" or "for the purpose of better comprehension of the issues" (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR ("Royal Guardian")). Some arose in circumstances where the husband's solicitor chose not to respond to a question asked of her and was asked to answer the question.
5. Many of the instances where the husband's solicitor says she was cut off are coupled with an assertion that it was done with an impatient tone, tense, or intimidating tone. I am not satisfied that the fair-minded lay observer who is neither unduly sensitive nor suspicious might reasonably conclude from what I said or the way in which I said it that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.
6. Many of the examples relate to a submission made by the husband's solicitor about a real estate agent that conclude with an assertion that I used an "abrasive and dismissive" tone in saying "let's get on with the real game" (Exhibit 2, page 20). The statement was made at the end of a submission made by the husband's solicitor that the wife's appointed real estate agent had been seeking to sell a property at under value. The statement was made after the husband's solicitor had to admit, having taken the Court at some length to a document, that she had misread the document and had therefore to resile from what she had previously said. The tone does not convey the imputation the husband asserts.
7. One example at page 23 of Exhibit 2 contends that what I said was "intimidation and personal against Burrows in stating to Burrows 'you took a risk'". The assertion misrepresents the transcript. The transcript reveals that what was said was "your client took a risk" (Exhibit 2, page 23).
8. The written submission contends that the transcript reveals the husband's solicitor was treated differently to the wife's senior counsel. What the transcript in fact reveals is that the husband's solicitor was asked many more questions that the wife's senior counsel arising from the way in which the application was conducted by his solicitor. This included, as referred to elsewhere in these reasons, a specious contention that the wife needed leave to rely on her affidavit when she didn't, that the Court had on 14 March 2025 said the wife would not be permitted to rely on her affidavit when it had not said anything about that on 14 March 2025, attempts to enquire as to why the husband had not complied with directions he had consented to, attempts to understand the relief sought by the husband when it was contained in various different documents, a failure to directly answer questions, and an erroneous contention that the wife's real estate agent had tried to sell a property under value which was without any foundation because it arose from a misreading by the husband's solicitor of a document. The manner and style of presentation of the husband's case required and justified greater than usual intervention (Royal Guardian at [38]).
9. I am not satisfied that any of the husband's solicitor subjective interpretations are such that the fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.
10. I am not satisfied that any of the asserted subjective assessments of the husband's solicitor individually or collectively demonstrate that I "entered the fray", became an advocate for the wife, or that the hearing was unfair.
11. To the extent that it was said they give rise to an apprehension of bias, no application was made that day or on 14 April 2025 that I recuse myself.

Ground 6 (a) The Judge gave 'advice' to the Respondent Wife in hearing dated 14 March 2025, namely that the '[F Street] Property' is in her name and that she does not require an Order for sale, notwithstanding it was not a question for determination at the hearing.

1. The transcript of 14 March 2025 records an exchange with senior counsel for the wife as follows:

MR DURA: Well, there were orders made for the husband to have occupation of that property, because he asserted that that's where he was living. But there were orders made about that. Well, there were orders made for the husband to have occupation of that property because he asserted that that's where he was living. Your Honour made some comment in some earlier reasons that that is a property that's in the wife's name and she ought have the opportunity to sell it if she so desired. Not only with my friend's predecessors, but the husband's former solicitors, there has been a significant amount of correspondence to have the husband engage in the sale of that property to which he has refused.

HIS HONOUR: Absent an injunction, what do you need to talk to him about?

MR DURA: Well, he had an order for occupation of the property

MR DURA: If your Honour is of that view, we will have it listed forthwith.

HIS HONOUR: But, Mr Dura, you can sell it with his occupation, can't you?

(Transcript 14 March 2025 p. 5 line 35 - p. 6 line 16)

1. As the Court of Appeal observed in Reid v Commercial Club (Albury) Ltd [2014] NS7WCA 98 observed:
   1. It is necessary to keep in mind that claims of apprehension of bias are to be considered in the context of ordinary judicial practice. Active case management, as part of modern litigation, often requires that trial judges intervene in the conduct of cases. Judges are not expected to wait until the end of the case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. Accordingly, the expression of tentative views, which reflect a certain tendency of mind of the judge, are not on that account alone to be taken to indicate prejudgment. Moreover, counsel are usually assisted by hearing the judges' tentative opinions on matters in issue and being given an opportunity to deal with them: Johnson v Johnson [2008] HCA 48 ; 201 CLR 488 at [13] (a case of alleged apprehension of bias) which referred to earlier comments in Vakauta v Kelly [1989] HCA 44 ; 167 CLR 568 at 571 (a case where actual bias was alleged).
2. The contention that there was the giving of advice is erroneous. No aspect of what was said that day shows prejudgment. They were all statements of undisputed fact.
3. The husband elected to make no application that day or on 4 April 2025 or on 16 April 2025 that I recuse myself (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568).

Ground 6 (e) The Judge did not make a ruling on the admission of the Respondent Wife's Reply and late affidavit.

1. This assertion, inconsistent with an earlier assertion that the Court had permitted the wife to rely upon the documents, is demonstrative of its erroneous nature.
2. At the hearing on 14 March 2025, the husband's solicitor said:

MS BURROWS: Your Honour, we haven't - in respect of the minutes of orders, what we're seeking leave is to amend the application in a proceeding so we can add these orders, and also to file a consolidated affidavit which will also reply to the response that the wife has provided only just a few days ago. That affidavit was meant to be filed in the middle of January, but it has only - it has recently been filed. The other issue is in respect of the wife's claim for interim payments. At the back of the interim - sorry- at the back of the minutes of orders is an annexure ---

...

MS BURROWS: --- as is in the proposed minutes of order, leave be granted to the husband to file an amended application in case filed on 2 December seeking additional orders, which are annexure B, what's being sought. And then seeking that leave be granted to the husband to file a consolidated affidavit in support of his amended application in a proceeding, and in reply to the wife's response to an application in a proceeding. And we're seeking a short timetable but that's filed by 21 March.

(Transcript 14 March 2025 p.3 lines 8 - 15 and 25 - 35, emphasis added)

1. Contrary to subsequent submissions by the husband's solicitor, the transcript reveals the husband understood he was preparing an affidavit in reply to the wife's relief. No issue was raised on 14 March 2025 by the husband's solicitor as to the necessity for leave. The consent orders of 14 March 2025 prepared by the husband's solicitor and the wife's solicitor made it abundantly clear what was listed for hearing which included the wife's affidavit and Response (Order 3).
2. No leave was required as it was implicit by the consent order what relief was to be determined by the Court. At no time on 14 March 2025 did the husband's solicitor before or after the making of the consent order inform the Court that one of the issues was whether the wife should be granted leave. The orders self-evidently make plain by the omission of such contention that the husband did not regard it as an issue which remained to be determined. If he did, it would have been recorded. It was not.
3. There was no prior order that prevented the wife relying on the affidavit without leave. The issue of the necessity for leave was a creature entirely of the husband's invention on 4 April 2025; it not having been canvassed on 14 March 2025.
4. It is unexplained by the husband why the fair-minded lay observer might reasonably apprehend that by failing to make a ruling as asserted and where same was unnecessary establishes that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.
5. Irrespective of those matters, the husband by his election chose to remain silent (Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568).

Ground 6 (g) The Judge disregarded evidence that the Respondent Wife orchestrated a position of being in dire financial need requiring urgent maintenance payments notwithstanding evidence of transferring at least $197,189.35 to her adult children and daughter's partners in a period of 12 months.

1. As with others, this is erroneous. The husband conflates the failure to accept a submission he made with an apprehension of bias. The husband fails to identify in what way the Court disregarded evidence in the making of the orders.
2. It is unexplained by the husband why the fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues just because I made an order contrary to that sought by the husband in circumstances where the husband had the capacity to meet such an order. Only the most sensitive and suspicious would so conclude. That is not an attribute of the fair-minded lay observer.

**Ground 7. The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice:(a) The Judge made Orders on 4 April 2025 upon orders sought in a document titled "Case Outline on behalf of the Respondent Wife" filed 5.23pm on 3 April 2025, thus denying the Appellant reasonable time and procedural fairness for an opportunity to respond, which also resulted in the Appellant's lawyer seeking haphazard instructions from the bar table.

Ground 7(b) The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice: On 4 April 2025, the Appellant objected to the Respondent Wife's affidavit of 11 March 2025 and her Reply from being admitted into evidence on the basis it was filed out of time. The Respondent Wife was not previously granted leave for it to be filed out of time on hearing on 14 March 2025, the Appellant was not afforded the opportunity to respond to her affidavit, and the Judge accepted the affidavit into evidence.

Ground 7(c) The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice: The Appellant was refused a 2- business day extension to file an Amended Application in a Proceeding and affidavit in response to the Respondent Wife's late affidavit and Reply.

Ground 7(d) The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice: The Judge made orders against the Appellant with reliance upon the Respondent Wife's affidavit yet denied the Appellant an opportunity to respond to the Respondent Wife's affidavit and which also resulted in the Appellant's lawyer seeking haphazard instructions from the bar table.**

1. These are all a variation on the same theme earlier addressed under the contention of apprehended bias. The reasons addressing those assertions are equally apposite to the contentions of a denial of procedural fairness.
2. Dealing with each in the order presented, the contention that the husband was denied an opportunity to respond to orders in the wife's Case Outline is erroneous. The orders made on 4 April 2025 referring to paragraph 15, 16 and 26 of the wife's Case Outline (with the exception of the letter dated 27 March 2025 at 26.7 seeking disclosure) are the same as the orders sought by the wife in her Response filed 11 March 2025. The husband knew the relief sought against him as he had identified it in the orders made 14 March 2025. The husband simply made a choice not to respond.
3. The haphazard taking of instructions, assuming that to be an accurate description, was a function of the husband's failure to comply with orders.
4. The assertion that the wife needed leave is without merit. The husband points to no order that required the wife to seek leave to rely upon her Response and affidavit. At the hearing on 14 March 2025, the husband's solicitor did not raise any issue of leave. Indeed, all that she said on that day including the preparation of a consent order noting the material relied upon by the wife demonstrated that the husband was responding to the wife's material. The husband's conduct in raising the issue of leave on 4 April 2025 is entirely inconsistent with what was said on his behalf on 14 March 2025 and smacks of afterthought.
5. On 14 March 2025, the husband consented to orders that he file his affidavits in reply by 21 March 2025. He did not comply with that direction instead choosing to file an application and affidavit in relation to an injunction. He sought an extension until 25 March 2025. He did not comply with the extension that he sought.
6. The husband's contention is really a complaint about the making of orders that he does not like dressed as a complaint of procedural fairness. Such complaint is not demonstrative of a denial of procedural fairness. The husband was given every opportunity to be heard and present his case but elected not to do so.

Ground 7(e) The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice: The Judge disregarded the Appellant's request that the disclosure questions be limited to 20 questions in accordance with Rule 6.22 (3)(b)

1. The husband's request was not disregarded, it was refused. Rule 6.22(3)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") has no application. The Rule does not make provision for a party to request another party to ask questions. In circumstances where the Rule does not apply then there can be no denial of procedural fairness or natural justice in not applying the Rule.

Ground 7(f) The Judge failed to afford the Appellant procedural fairness amounting to a denial of natural justice: The Judge disregarded the onerous nature of the Respondent Wife's request for disclosure, that were not required to be answered by the Appellant because they fell into the category of Rule 6.06 (4)(b)

1. Rule 6.06(4)(b) had no application in circumstances where the wife was making a specific request for specific documents in accordance with r 6.18 which the husband had refused to provide. Requiring the husband to provide documents relevant to an issue in the proceedings does not amount to a denial procedural fairness or a natural justice.
2. There was nothing procedurally unfair in requiring the husband to provide documents. He had chosen not to engage with the wife's relief. Procedural fairness does not concern itself with the result rather the process.

On 16 April 2025 I did not properly read and consider the husband's Costs Notice which "supports my client's concern that if you didn't read the costs notice, which did set out estimates of an appeal, you're not considering his other material that's before you" (Transcript 29 April 2025, p. 12 line 35)

1. Accepting the husband's proposition that I did not accurately read the Costs Notice of 16 April 2025 does not establish that I did not read or consider any other documents, nor does it establish prejudgment. The husband fails to articulate why the fair-minded lay observer might reasonably apprehend from that fact, accepting its accuracy, that I might not bring an impartial mind to bear on the issues for determination.

The Court made an urgent spousal maintenance order in circumstances where there was no evidence that the husband could afford spousal maintenance

1. There was ample evidence that the husband had the capacity to meet the urgent spousal maintenance order. That conclusion was reinforced by his payment on 13 April 2025 to Ms V in preference to the obligation imposed upon him by the orders.
2. The mere making of an order, even one contrary to the position advanced by a party, does not in and of itself establish prejudgment. The husband has not established why the making of such an order might lead the fair-minded lay observer to conclude that I might not bring an impartial mind to the matters that the Court has to determine.

In the reasons for judgment delivered on 12 April 2024, the Court did not believe the husband's evidence.

1. The husband's solicitor contends that the reasons for judgment delivered 12 April 2024 demonstrate apprehended bias in that the Court did not believe the husband's evidence. As with most of the husband's contentions, it is a bald assertion absent particulars. A reading of the Reasons reveals no such contention. The Reasons specifically record in relation to the husband under the heading of "Discussion" that the husband's position changed in the affidavits on which he sought to rely and the positions he proposed at court. That does not amount to not believing the husband's evidence. Nor does the making of an order contrary to that sought by the husband constitute a finding that the Court did not believe the husband's evidence. Absent the identification of the material said to constitute a determination by way of prejudgment, there is no merit to the contention advanced on behalf of the husband's solicitor.
2. At no time in the 12 months following delivery of judgment, and despite a number of appearances, was any application for recusal made until the unsuccessful application for a stay. The husband deliberately and consciously elected to remain silent despite being legally represented at every appearance. The husband's silence constitutes a waiver. As their Honours observed in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, "a party who has legal representation is not entitled to stand by" (at 572).

At [6] of the reasons for judgment delivered 29 April 2025 the Court had regard to documents that were not in evidence before it including affidavits and in particular a Case Outline of the wife filed on 28 March 2024 whilst not referring to the husband's Case Outline and in doing so acted as the advocate for the wife.

1. Paragraph 6 of the Reasons is a reference to matters of background which incorporates part, but not all, of the Reasons delivered 12 April 2024. The contention that they were not in evidence is incorrect. They formed part of the material read by the wife in her case on 4 April 2024 that led to the making of the orders the subject of the stay.
2. They represent background to the issues in the hearing and refer to the evidence of the wife and the husband. The fair-minded lay observer knows about the background to the litigation and the husband fails to establish why they might reasonably apprehend (given the knowledge they have) that I might not bring an impartial and unprejudiced mind to the resolution of the interlocutory issues.

At [33] of the reasons for judgment delivered 29 April 2025 the Court misinterpreted the husband's Financial Statement and took the husband's evidence into account in a negative light.

1. The assertion that I misinterpreted the husband's Financial Statement and took his evidence into account in a negative light fails to identify how or in what way it was misinterpreted or taken into account in a negative way. The fact of interpretation in a particular way even adverse to the case advanced by the husband does not demonstrate prejudgment.

1. The husband's solicitor's submissions amounted at best to a series of assertions that were said to constitute actual bias, apprehension of bias or a denial of procedural fairness. There was no attempt to engage with either of the steps in Ebner nor was there any engagement in any way with the question of reasonableness, nor an attempt to meet the strict requirements necessary to establish actual bias, or to engage with the matters said to establish a denial of procedural fairness.
2. As to the assertions of apprehended bias the Full Court observed in Kingston & Field (No 2) (2020) FLC 93-986 apposite to the assertions here:
   1. The assertion of apprehended bias remains a bare and unfounded allegation until the connection between the primary judge's conduct and the possibility of departure from the judicial duty of impartiality is clearly articulated.
3. The making of an adverse determination does not establish actual or apprehended bias nor a denial of procedural fairness.
4. I am not satisfied either singularly or cumulatively the asserted complaints establish that a fair-minded lay observer might apprehend that I might not bring an impartial mind to the determination of the issues before the Court nor do they establish that the husband was denied procedural fairness or that the hearing was unfair.
5. The husband's oral application that I recuse myself is dismissed.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.