When a Judge’s Words Tilt the Scales: The Federal Circuit and Family Court Reins in Premature Judicial Commentary
The appellate judgment in Leena & Leena [2025] FedCFamC1A 241 (Hogan, Altobelli & McNab JJ) serves as a critical reminder that judicial neutrality must not only exist but must be seen to exist. The Court partially allowed an appeal from parenting and property orders after finding that the trial judge’s premature comments and conduct during the hearing gave rise to a reasonable apprehension of bias. The case further addressed errors in the trial judge’s approach to contributions in the property settlement, setting aside those orders and remitting the matter for rehearing before a different judge.
Facts and Issues
- The appellant (mother) and respondent (father) disputed both parenting arrangements for two children and property settlement orders.
- During trial, the mother applied for the primary judge’s recusal, arguing his comments suggested prejudgment. Her application was refused, and the final orders were made largely in the father’s favour.
- The judge commented mid-trial that he was “not persuaded” the father posed a risk to the children—before the father was cross-examined—and made remarks suggesting the mother would “never find [the father] good enough”.
- On appeal, the mother alleged apprehended bias, failure to consider material evidence, and error in applying a presumption of equal contributions in property division.
The issues were:
- Whether the judge’s conduct and comments created a reasonable apprehension of bias.
- Whether the judge misapplied the law on property contributions, suggesting a presumption of equality.
- Whether the judge failed to provide adequate reasons and consider all relevant material.
Rule (Law)
- Apprehended Bias Principle:
- 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” (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 273 CLR 289).
- Judicial Conduct and Commentary:
- Judges may offer provisional views to assist counsel (Johnson v Johnson (2000) 201 CLR 488), but such remarks must not appear to predetermine issues or reflect prejudgment.
- Contributions in Property Settlement:
- Under s 79(4) of the Family Law Act 1975 (Cth), contributions are assessed holistically; there is no presumption of equality (Mallet v Mallet (1984) 156 CLR 605).
- Adequate Reasons:
- Failure to address key evidence or provide logical reasoning constitutes error (Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430).
Application (Analysis)
1. Apprehended Bias
Justice Hogan (with Altobelli and McNab JJ agreeing) found that the timing and tone of the primary judge’s remarks would lead a fair-minded observer to doubt his impartiality.
- On the first trial day, before all evidence was heard, the judge stated:
“I’m not persuaded that the father presents a risk to these children… I’m not persuaded that the interests of the children warrant reduction in time.”
- These comments, though qualified as “preliminary,” occurred mid-cross-examination of the mother and before hearing the father, implying a premature conclusion.
- On the second day, he urged settlement in line with the Independent Children’s Lawyer’s proposal—again suggesting he had formed an early preference.
- The Court cited Johnson v Johnson and Charisteas v Charisteas, reaffirming that the appearance of bias suffices to vitiate a judgment.
Justice Hogan observed that repeated expressions of scepticism toward one party’s case and the invitation to the opposing party to apply for interim orders during the other’s illness compounded the appearance of partiality.
“A fair-minded observer might reasonably apprehend that the primary judge might not bring an impartial mind to the resolution of the issues he was required to decide.”
Thus, the apprehended bias ground was made out.
2. Property Contributions
The appellate bench held that the trial judge had erred in treating contributions as presumptively equal, contrary to Mallet v Mallet. While equality can be a result, it cannot be a starting point. Repeated references to making an “adjustment” implied the judge assumed parity before considering evidence of the wife’s post-separation inheritance and homemaker contributions. This amounted to legal error warranting rehearing on property division.
3. Adequacy of Reasons
Certain factual and evidentiary matters—such as the mother’s medical evidence and child welfare concerns—were not adequately addressed. The Court cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 for the principle that reasons must expose the reasoning path; failure to do so renders appellate review impossible.
Judgment and Reasoning
- Appeal Outcome:
- The appeal was allowed in part. Parenting orders were upheld, but property orders (Orders 27–44) were set aside. The case was remitted for rehearing before a different judge.
- Both parties received costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the new trial.
- Judicial Reasoning:
- The Court emphasized that even “tentative” judicial views can breach neutrality when they appear outcome-determinative.
- The principle of impartiality “overrides any case management considerations” and protects public confidence in the judiciary.
- Hogan J summarized:
“It was very unfortunate that the primary judge made the comments that he did… at a time when he had not seen the respondent be cross-examined.”
Precedents Relied Upon
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
- Johnson v Johnson (2000) 201 CLR 488
- Charisteas v Charisteas (2021) 273 CLR 289
- Mallet v Mallet (1984) 156 CLR 605
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- House v The King (1936) 55 CLR 499
Take-Home Lesson
Judges must avoid comments or conduct that could suggest prejudgment, especially during live evidence. Even expressions of “preliminary” opinions may create a perception of bias if made prematurely or repeatedly. For practitioners, this decision reinforces vigilance in protecting procedural fairness — and the need to object when judicial commentary risks crossing that line.
