Malcom & Pereira [2025] FedCFamC1A 177 (26 September 2025)

🔹 Introduction

In Malcom & Pereira [2025] FedCFamC1A 177, the Full Court of the Federal Circuit and Family Court of Australia (McClelland DCJ, Altobelli & McNab JJ) dismissed a father’s appeal against parenting orders that prevented him from spending any time with or communicating with his two children. The case dealt with complex allegations of family violence, competing credibility claims, and the father’s multiple applications for the trial judge to recuse himself for alleged bias. The appeal is significant for its reaffirmation of high appellate thresholds when challenging discretionary family law decisions, and for clarifying how alleged judicial bias and procedural fairness issues are assessed under Australian law.

🔹 Facts and Issues

• The mother alleged that the father was physically, emotionally, and sexually abusive towards her and the children.
• The father denied all allegations and sought a change of residence so the children would live with him.
• The trial judge found evidence of family violence, and determined that the children’s fear of their father was genuine and that time with him would pose a risk to their safety and emotional wellbeing.
• Final orders were made granting sole parental responsibility to the mother and providing that the father spend no time and have no communication with the children.
• The father appealed, raising multiple grounds, including:
• The judge’s refusal to recuse himself for alleged bias (Grounds 1–2).
• Denial of procedural fairness and exclusion of certain evidence (Grounds 3–4, 10).
• Alleged erroneous factual findings about family violence and risk (Grounds 5–7).
• Failure to apply ss 60CC and 60CG of the Family Law Act 1975 (Cth) correctly.

The key issues were:

1. Whether the trial judge was biased or failed to ensure procedural fairness.
2. Whether the findings of family violence and risk to the children were open on the evidence.
3. Whether the “no contact” order was legally justified in the children’s best interests.

🔹 Rule (Law)

• Family Law Act 1975 (Cth):
• s 60CC – sets out factors for determining a child’s best interests.
• s 60CG – requires courts to ensure child safety when making parenting orders.
• s 102NE (formerly s 69ZN) – imposes principles for active case management and procedural efficiency.
• Evidence Act 1995 (Cth) s 140 – civil standard of proof.
• Leading precedents:
• House v The King (1936) 55 CLR 499 – appeal from discretion only if clear error shown.
• Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – two-limb test for apprehended bias.
• Johnson v Johnson (2000) 201 CLR 488 – context and judicial management in bias assessment.
• Fox v Percy (2003) 214 CLR 118 – appellate limits on reviewing credibility and factual findings.

🔹 Application (Law to Facts)

The Full Court meticulously applied the principles from Ebner, House, and Fox:

1. Bias and Recusal Applications

• The father claimed the primary judge’s questions, tone, and remarks during trial created an appearance of bias.
• The Full Court applied the “double might” test from Ebner: whether a fair-minded observer might reasonably apprehend that the judge might not remain impartial.
• After reviewing the transcript, the Court found that the trial judge’s remarks were ordinary judicial management and clarification—not bias. Judges are permitted to be “robust” or “forthright” (Antoun v R (2006) 224 ALR 51).
• The judge had properly ruled on objections and managed proceedings within his statutory case management duty under s 102NE.
• Result: No apprehended bias.

2. Procedural Fairness and Evidence

• The father argued he was denied fairness when evidence about his employment and a solicitor’s affidavit (Mr J) were excluded.
• The Full Court held that those decisions were within the trial judge’s discretion, since the material was late, untested, and would prejudice the mother.
• Procedural fairness requires opportunity to be heard, not unlimited freedom to adduce late evidence (Kioa v West (1985) 159 CLR 550).

3. Findings on Family Violence and Risk

• The father claimed the findings were “glaringly improbable.”
• The Full Court reaffirmed Fox v Percy: appellate courts defer to trial judges on credibility unless findings are plainly unjust or not open on the evidence.
• The trial judge accepted that some allegations (e.g., sexual abuse, “waterboarding”) were not proven but still found a pattern of coercive and emotional abuse exposing the children to harm.
• The CCE (Court Child Expert) evidence confirmed that the children’s fear of the father was genuine and that contact posed psychological risk.

4. No Contact Order

• The Full Court upheld the order as consistent with s 60CC and s 60CG, emphasising that children’s safety and emotional stability outweighed the father’s desire for contact.
• The mother’s mental health and parenting capacity would be seriously compromised if forced contact occurred.

🔹 Judgment and Reasoning

• Appeal dismissed.
• Father to pay costs of $24,120.54.
• The Court found no legal, factual, or discretionary error.
• Justice McClelland DCJ stated that appellate interference with discretionary family law decisions requires a clear misapplication of principle — none existed here.
• The findings on family violence were “reasonably open” and grounded in credible evidence.
• The judge’s conduct was consistent with modern judicial practice and active case management.

🔹 Take-Home Lesson

• Bias claims require substance, not perception. Strong judicial comments or case management are not bias.
• Appellate deference: Appeals will not succeed simply because another judge might have decided differently.
• Child safety and emotional wellbeing remain paramount; if children fear a parent and that fear is reasonably grounded, no-contact orders can be justified even absent ongoing violence.

👉 In family law appeals, success requires proving actual error — not simply dissatisfaction with the outcome.