Kapoor & Kapoor [2025] FedCFamC1A 156 (5 September 2025)

🔹 Introduction

This case examines an application for leave to appeal against a judge’s refusal to recuse himself on the basis of ostensible or apprehended bias in ongoing parenting proceedings. The mother, Ms Sabia, alleged that the primary judge’s engagement with the Independent Children’s Lawyer (ICL) and reliance on a single expert’s recommendations gave rise to a perception of bias. The Federal Circuit and Family Court of Australia (Division 1), however, rejected this claim.

🔹 Facts and Issues

• The parties married in 2018 and had a child in 2020.
• Following separation in 2022, parenting orders were made for the child to spend increasing time with the father.
• A single expert (Dr C) recommended a gradual move towards shared care.
• During the trial, the primary judge encouraged the parties, via the ICL, to consider settlement based on Dr C’s recommendations.
• The mother sought the judge’s recusal, alleging apprehended bias (that the judge had prejudged issues about living arrangements, parental responsibility, and a potential name change).
• When this was refused, she applied for leave to appeal.

Issue:

Whether the primary judge’s conduct gave rise to a reasonable apprehension of bias warranting recusal, and whether leave to appeal should be granted.

🔹 Rule (Law)

1. Apprehended Bias – the “double might” test:
2. A fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the issues (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]).
3. Tentative Judicial Comments:
4. Judges may express preliminary views without amounting to prejudgment (Johnson v Johnson (2000) 201 CLR 488 at [13]; Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577).
5. Leave to Appeal – Medlow & Medlow (2016) FLC 93-692:
6. The two-strand test:

• Was the decision attended by sufficient doubt to warrant reconsideration?
• Would substantial injustice result if leave were refused?

🔹 Application (Analysis of Judgment)

1. Was there apprehended bias?

• The Court held that the judge’s request to the ICL to prepare draft orders was not a direction and was consistent with ordinary case management practices (at [67]–[72]).
• Judges are expected to encourage settlement and manage proceedings actively, especially in family law where the child’s best interests are paramount (s 60CC Family Law Act; s 69ZN principles).
• A “fair-minded lay observer” would not see this as the judge having a “closed mind” ([55]–[57]).

2. Appropriate Judicial Practice

• The Court noted it was “unremarkable” for the judge to suggest parties consider Dr C’s report in settlement discussions ([41]).
• Expressing preliminary views is part of modern judicial practice and does not equate to bias (GlaxoSmithKline v Reckitt Benckiser [2013] FCAFC 150 at [43]).

3. Leave to Appeal

• Applying Medlow’s two-strand test, the Court found no sufficient doubt about the primary decision and no substantial injustice if leave was refused ([66], [82]–[83]).
• The mother could still raise bias arguments in a later appeal after final orders, reducing the risk of injustice.

🔹 Cited Precedents

• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – test for apprehended bias.
• Johnson v Johnson (2000) 201 CLR 488 – judges may express tentative opinions without prejudgment.
• Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 – preliminary judicial comments not determinative of bias.
• Medlow & Medlow (2016) FLC 93-692 – leave to appeal two-strand test.
• Charisteas v Charisteas (2021) 273 CLR 289 – reaffirming Ebner bias principles.

🔹 Conclusion (Take-Home Lesson)

The Court dismissed the mother’s application for leave to appeal. The key lesson is that judicial encouragement of settlement, reliance on expert recommendations, and expression of preliminary views do not, without more, amount to apprehended bias. Appeals on such grounds face a high threshold, especially at interim or part-heard stages.

📌 Take-Home Message

👉 Allegations of bias must be grounded in clear evidence of a “closed mind.” Judges in family law are expected to actively manage cases, encourage settlement, and consider expert reports—these practices are consistent with their statutory obligations, not signs of prejudice.