Burgess v Minister for Immigration and Border Protection

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 Tanit & Tanit has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Before me is a Case Management Hearing wherein I had anticipated setting the matter down for a threshold hearing with respect to two Binding Financial Agreements ("BFA").
2. When the matter was called on this morning, a former Justice of this Court, whom I appeared before many times, announced his appearance.
3. Whilst Mr B sat in the Family Court of Australia, s 8 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) makes it plain, this Court and the Family Court are one and the same. Section 8 provides:

8 Federal Circuit and Family Court of Australia

(1) The federal court known immediately before the commencement day as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1).

1. No one took issue with that.
2. I appreciate the former Justice has sat out his time as required by the Bar Association of Queensland Barristers' Conduct Rules ("Bar Rules") and perhaps [what Senior Counsel called] the 'national rules', but that does not dispose of the matter as far as I am concerned. The proper administration of justice must triumph over time out periods expressed in Bar Rules.
3. I also appreciate that it has long been accepted that there is a public interest in a litigant not being deprived of their counsel of choice "without good cause. The right to the choice of one's counsel is an important value. But it is not an absolute ...".[1] There is a useful discussion about this in Western Australia v Ward & Ors[2] at 498 that:

In Kooky Garments Ltd v Charlton [1993] NZHC 2760; [1994] 1 NZLR 587 at 590 Thomas J noted that the general right of a party to be represented by the counsel or solicitor of its choice must give way to the overriding principle of protecting the integrity of the judicial process: See also Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446.

Enough has been said to show that the requirements of natural justice do not involve an absolute right to the legal adviser of a party's choice ...

1. When appearances were announced, I asked the former Justice to address me on what the reasonable bystander might make of a former Justice of this Court appearing in the same Court. Thus, we were in the world of Ebner[3] and apprehended bias.
2. He submitted:
   • He had sat out his time under [what he called] the 'national rules'; and
   • That if the reasonable bystander knew that rule, that would essentially - my words - assuage any apprehension.
3. To that last point, I raised with [both] Counsel the Australasian Institute of Judicial Administration's ("AIJA") "Guide [to Judicial Conduct]",[4] and gave both Counsel a copy which says, such timelines are "minimum standards only".[5] Obviously though, I am not bound by that document.
4. Having seen the former Justice's name on some pleadings when I was reviewing the matter on Friday, I was thus alert to the possibility of Mr B appearing. When the matter came on today, I had my associates give him and the other Counsel a copy of a publicly available article, "The Growing Imperative to Reform Ethical Regulation of Former Judges"[6] published in the International and Comparative Law Quarterly. I gave them both documents and stood the matter down so they could read the article and Guidelines and make further submissions, i.e. procedural fairness. I marked each as Exhibits. Like the Guidelines and Bar Rules, I am not bound by the article.
5. When the matter resumed, Senior Counsel for the husband submitted that:
   • A fair-minded observer, armed with the Bar Rules, Guidelines and article would likely consider I would bring an impartial mind and decide the matter on the facts; and
   • Highlighted, and I absolutely accept, he and I did not serve together and that ought then add to the mitigation of any such apprehension.
6. The wife's Counsel submitted:
   • His client did not object to me hearing the matter, but I observed who knows how things will go if the proceedings go wrong for her down the track;
   • He was satisfied I would bring an impartial mind or, as I understand that submission really to mean, a reasonable observer would see so; and
   • He did however add that the wife had "early concerns" regarding the former Justice given his [former] position.
7. I accept the wife does not object, and I accept His Honour has done his time, to use the vernacular, but the proper administration of justice falls to me.

1. The husband was born in 1967 and the wife in 1974.
2. It seems they commenced living together in 1998 or 1999 and married in 2000. They have three adult children born between 2001 and 2006.
3. Again, it seems in mid-2009 they separated for three months and a BFA was signed in that year. That is the first BFA. In August 2019 it seems that the parties separated on a final basis and in the same year another BFA was signed. That is the second BFA.
4. In late-2020 the parties divorced.
5. The wife commenced these proceedings in August 2025, and the matter was transferred to Division 1 in January of this year.
6. By her Initiating Application filed on 12 August 2025, the wife seeks that the BFAs dated 2009 and 2019 be set aside and that the husband pay her costs.
7. The husband by his Response dated 30 January 2026 seeks orders that the Initiating Application be dismissed, a declaration that the 2019 BFA is binding and has not been set aside. In the alternate, if the 2019 BFA is set aside, a declaration that the 2009 BFA is not set aside. He seeks costs on an indemnity basis.

1. In Ebner the plurality of the High Court of Australia said (at [6]):
   1. ... 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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

1. This "double might test" asks whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the issue they are to decide.
2. As Charlesworth J explained in Burgess v Minister for Immigration and Border Protection[7] (at [36]):
   1. Judicial statements to the effect that an allegation of apprehended bias must be distinctly made and clearly established are not to be understood as altering the degrees of likelihood inherent in the test itself: see MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at [106] and the cases cited therein. Each 'might' in the double might test connotes a degree of likelihood that is lower than that which may be required by the civil standard of proof in an ordinary fact-finding context. It must nonetheless be shown that the reasonable lay observer might apprehend that the decision-maker might have a foreclosed mind. It is not sufficient to demonstrate that the observer may have 'a vague sense of unease or disquiet' on the question: Jones v Australian Competition and Consumer Commission [2002] FCA 1054; (2002) 76 ALD 424 (Jones) at [100] (Weinberg J).

1. More recently in Henley & Bestari[8] - albeit involving a different factual basis for the examination of apprehended bias - the Appeal Judges said at [25]-[26]:
   1. The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
   2. As to the first step, in Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 at 74 ("Webb") Deane J identified "at least four distinct, though sometimes overlaying, main categories", which include disqualification by interest, whether pecuniary or otherwise, conduct, association, or extraneous information.
2. The former Justice's appearance in the same Court in which he sat raises conduct and/or association. By conduct I mean he conducted himself as a Judge of this Court for many years and now wishes to conduct himself as Senior Counsel in the same Court.
3. As to the second step, the Appeal [Division of this] Court relevantly said:[9]
   1. First, the inquiry is objective (Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [12] ("Johnson")) and does not require a conclusion about the judge's actual state of mind (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 66 Fam LR 369 at [68]), secondly, all circumstances must be considered (Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 371. See also, CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 at [20]), thirdly, the criterion is concerned with "possibility (real and not remote), not probability" (Ebner at [7]), fourthly, the apprehension is from the perspective of a fair-minded observer, meaning "it is the court's view of the public's view, not the court's own view" that is determinative (Webb at 52) and lastly, the qualities and attributes of the fair-minded observer must be taken into consideration.

1. There is to my mind, a logical connection between a former Justice of this Court appearing before this same Court and the objective apprehension. Frankly, from the perspective of the fair-minded lay observer, cognisant of all relevant facts, they might reasonably apprehend, notwithstanding the time out provision in the Bar Rules that:

(a) The husband, for whom the former Justice acts, has, to use the vernacular, "the inside running" because of his legal representative's status as a former Justice of this Court.

1. Or the reasonable observer may apprehend the flip side:

(b) Will the Court favour the wife so as to avoid looking like the Court is not favouring the former Justice and thus his client?

1. Neither apprehension assists with the appearance of justice being done.
2. As put far more eloquently in the article that was given to the parties and they had time to review:[10]

There are usually two impartiality-based concerns associated with return to practice. They reveal that judicial return to practice is both an issue relating to the conduct of former judges, and also implicates serving judges. The first concern is that a judge returning to practice may be given preferential treatment when appearing before the court by reason of their former position. Even when appearing in courts other than that on which they served, former judges might be making submissions about precedents which they themselves decided, which might result in deferential, if not preferential, treatment. Clients might seek out former judges to act for them based on these perceptions. Thus the return to practice of former judges may damage public confidence because of the response to them by serving judges. Alan Blow, now Chief Justice of Tasmania, explained the importance of curbing the practice:

If that convention were not in place, and ex-judges appeared as counsel in their former courts, any decision or ruling in favour of an ex-judge's client would be likely to foster, at least in the mind of the unsuccessful party, an apprehension that the presiding judge was biased in favour of his or her former colleague. The greater the turnover of judges, and the more they retire to resume private practice, the more likely it is that this important convention will be eroded.

1. The second matter referred to in the article about the two impartiality concerns is irrelevant for these purposes.
2. Quite apart from what was said in the article and the Guidelines, I have formed the view that the administration of justice requires that justice must not only be done but be seen to be done, and, public confidence in the independence, impartiality and integrity of the judiciary must be maintained. When I say I have formed that view, [those principles are] indeed a golden thread that runs through the jurisprudence. It is the jurisprudence and principles with which I wholly agree and adopt.
3. That article adds a further conundrum:[11]

... Many former judges return to practice at the bar or as consultants to solicitors' firms. Some turn to the delivery of 'private justice' in the form of arbitration, mediation services and private investigations. Indeed, in Australia, the adoption of a written code of judicial ethics was preceded by concerns regarding retired judges returning to practice while drawing the judicial pension. This was seen as 'posing the most controversial ethical issue'.

(Footnote omitted)

1. It is not necessary for me to resolve or say any more about this "most controversial ethical issue" or what the reasonable bystander may make of a former judge appearing in the same Court from which their service gave rise to the receipt of a judicial pension.
2. However, next, as acknowledged in Henley at [45], the reasonable observer may also apprehend that the impact of the appearance of a former judge of this Court "might, at the least, subconsciously affect" my assessment of the matter going forward and the exercise of discretion, if that was to arise.
3. Finally, what would the Court make of case law, more importantly what would the reasonable bystander make of case law or authorities which the former Justice may urge upon me - but of which he was the author?
4. Counsel said he would not do that with single judge decisions, but it is impossible to know the metes and measures of this litigation into the future. I also note Counsel is, of course, required to act [for his client] without fear or favour.
5. Accordingly, with a former Justice of this Court proposing to appear before me, I am satisfied that a reasonable fair-minded lay observer, cognisant of all relevant facts which I have listed, might reasonably apprehend I might not bring an impartial and unprejudiced mind to the hearing of the subsequent de facto threshold hearings, and I will recuse myself from the proceeding.
6. I will refer the proceeding to the Case Management Judge for re-allocation.
7. The former Justice submitted that if I determined to recuse myself, that I "find" a judge who will - and by that, I understood him to say [I find a judge] who will hear the matter. It is not for me to undertake some extra-curial poll of the other Justices of this Court. Thus, this matter may - or may not - come up again before another judge and if it does then that will be a matter entirely for them.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch.

[1] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446 at 450.

[2] [1997] FCA 585; (1997) 76 FCR 492.

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

[5] Australasian Institute of Judicial Administration, Guide to Judicial Conduct (4th ed, 2026) ch 7.2, p.28.

[6] Gabrielle Appleby and Alysia Blackham, 'The Growing Imperative to Reform Ethical Regulation of Former Judges' (2018) 67(3) International and Comparative Law Quarterly 505 ("the article").

[7] [2018] FCA 69; (2018) 259 FCR 197.

[8] [2024] FedCFamC1A 12; (2024) FLC 94-169 ("Henley").