⚖️ Spargo & Spargo [2025] FedCFamC1A 174 (25 September 2025)

Introduction

In Spargo & Spargo [2025] FedCFamC1A 174, the Federal Circuit and Family Court of Australia (Appellate Division) considered whether a trial judge erred in refusing to recuse herself in parenting proceedings. The case centered on whether the judge’s interventions during cross-examination created an appearance of apprehended bias and denial of procedural fairness. Justice Strum allowed the appeal, ruling that the father had been denied the assurance of an impartial tribunal, and ordered a retrial before a different judge.

Facts and Issues

• The father (appellant) sought the trial judge’s recusal on grounds of apprehended bias and denial of procedural fairness.
• Complaints included:
• Excessive judicial questioning.
• Interruptions of cross-examination.
• Pejorative and joking comments, including the remark: “What happens at mother’s group stays at mother’s group” [para 67–70].
• Perceived alignment with the mother’s position.
• The trial judge dismissed the application, reasoning that she had made no findings or prejudgments and the father was not prevented from running his case [paras 183–185].
• The father appealed, arguing that the Ebner v Official Trustee in Bankruptcy “double might” test was misapplied.

Issues:

1. Did the trial judge misapply the test for apprehended bias?
2. Was procedural fairness denied through judicial interventions?
3. Should the matter be retried before a new judge?

Law

• Apprehended bias test: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]–[8] – the “double might” test requires:

1. Identification of what might lead a judge to decide a case other than on its merits.
2. Articulation of a logical connection between the conduct and feared deviation.

• Johnson v Johnson (2000) 201 CLR 488 – perspective of the fair-minded lay observer.
• Charisteas v Charisteas (2021) 273 CLR 289 – even the appearance of bias undermines public confidence.
• Re JRL; Ex parte CJL (1986) 161 CLR 342 – justice must not only be done but seen to be done.
• House v The King (1936) 55 CLR 499 – appellate review where judge acts on wrong principle.

Application

• The trial judge insisted bias required proof of prejudgment [para 165], but the law only requires that a reasonable observer might apprehend bias. This was a misstatement of the legal test.
• Examples of judicial overreach included:
• Taking over cross-examination [para 74].
• Making comments suggestive of solidarity with the mother [paras 67–70].
• Interrupting and guiding witness questioning in a manner more aligned with advocacy than neutrality [paras 60–66].
• These interventions, cumulatively, could reasonably lead a fair-minded observer to doubt impartiality.
• On procedural fairness, the judge’s repeated interruptions and comments deprived the father of a fair opportunity to present his case.

Judgment and Reasoning

• Justice Strum held that the primary judge erred in law by failing to apply the Ebner test correctly [paras 51–59].
• The judge’s comments and interventions, though perhaps individually explainable, when taken together created a reasonable apprehension of bias [paras 69–74].
• The dismissal of the recusal application was therefore wrong.
• Appeal allowed; retrial ordered before a different judge; costs certificates issued to both parties [Orders, p. ii].

Take-Home Lesson

➡️ Judges must not only remain impartial but also appear impartial to the fair-minded observer. Judicial over-intervention, inappropriate comments, or conduct resembling advocacy risks undermining public confidence in justice.

For litigants, this case highlights the importance of promptly raising concerns of bias and ensuring the correct legal standard is applied.