When the Solicitor Walked Out: Recusal Failed Because Referral to the Regulator Was About Practitioner Conduct, Not Bias Against the Husband

In Rahman & Rahman (No 2) [2026] FedCFamC2F 998, Judge Murdoch dismissed the husband’s application for the trial judge to recuse herself from property proceedings. The husband argued apprehended bias based on two matters: first, the refusal of his adjournment application and the possibility the trial might proceed in his absence; second, the judge’s treatment of his solicitor, including referral of that solicitor to the Office of the Legal Services Commissioner. The judgment refers to the OLSC, not the Legal Services Board. The recusal application failed because the referral concerned the solicitor’s courtroom conduct and did not decide, or logically affect, the parties’ substantive property dispute.

🧩 Facts and Issues

Facts:

The husband commenced property proceedings seeking 55% of the parties’ net property, including superannuation. The wife sought dismissal of his application. The husband was represented throughout by D Law Firm, and the wife by Dina Lawyers.

The litigation history was poor from the husband’s side. Earlier orders required full and frank disclosure and an Undertaking as to Disclosure. The wife complied, but the husband did not. His time for disclosure was extended, but he again failed to comply. There was then no appearance by or for the husband at a later court date, and directions were made for his legal representative to explain why a personal costs order should not be made, although no personal costs order was ultimately made at that stage.

The matter was listed for final hearing. The husband filed adjournment applications, but the matter remained listed. On 5 March 2026, there was no appearance by or for the husband, and the final hearing dates were confirmed. The wife was granted leave to proceed undefended if the husband did not appear at trial.

On 12 March 2026, the matter came before Judge Murdoch for final hearing. Counsel appeared for the husband, instructed by Mr E, but the husband himself was not present and had filed no trial material. The husband’s adjournment application was refused. Counsel for the husband then obtained leave to withdraw. The solicitor, Mr E, also sought leave to withdraw, but that application was refused. Mr E then absented himself from the courtroom without leave, and the Associate’s attempts to have him return were futile. Judge Murdoch then declined the wife’s application to proceed undefended, adjourned the final hearing, and referred the solicitor to the OLSC.

The husband later filed a recusal application, arguing that the judge’s refusal of the adjournment, the treatment of Mr E, and the referral to the regulator created apprehended bias. That application was not filed until 17 June 2026, about three months after the impugned conduct.

Issues:

1. Did the refusal of the adjournment application create apprehended bias?
2. Did the judge’s treatment of the husband’s solicitor create apprehended bias?
3. Did referring the solicitor to the OLSC mean the judge had descended into the arena or become a “co-prosecutor”?
4. Was there any logical connection between the solicitor referral and the judge’s ability to determine the property dispute impartially?
5. Had the husband waived any recusal complaint by waiting three months before filing the application?
6. Why was the solicitor’s conduct serious enough to justify referral to the regulator?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• Part VIII — property proceedings.

Federal Circuit and Family Court of Australia Act 2021 (Cth)

• s 28(1)(c) — relevant to leave to appeal from a decision refusing recusal.
• s 36(5) — relevant to appeal limitations referred to by the Court.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

• r 2.23(4)(b) — relevant to the filing of written submissions.

The key legal test was apprehended bias: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the determination of the dispute. The Court applied the Ebner “double might” test: identify the matter said to give rise to possible bias, then explain the logical connection between that matter and the feared departure from impartiality.

📌 Precedents Relied On

• Ebner v Official Trustee in Bankruptcy — the “double might” test for apprehended bias.
• Johnson v Johnson — fair-minded lay observer test.
• Charisteas v Charisteas — apprehended bias principles.
• Vakauta v Kelly, Shipton & Garwood, Cassegrain, and Michael Wilson & Partners v Nicholls — delay in bringing a recusal application may amount to waiver.
• Newett & Newett (No 2) — dissatisfaction with judicial decisions is not bias.
• Meyrick & Meyrick — cumulative assessment of alleged bias matters.
• Re JRL; Ex parte CJL, Livesey, and British American Tobacco v Laurie — broader apprehended bias principles.

🧠 Analysis

Issue

Did the judge’s referral of the husband’s solicitor to the OLSC create apprehended bias requiring recusal, and what did the solicitor do that caused the referral?

Rule

A judge is not disqualified merely because they make robust case-management decisions, refuse an adjournment, criticise a practitioner, or refer a practitioner’s conduct to a regulator.

The question is not whether the party dislikes the ruling. The question is whether a fair-minded lay observer, properly informed, might reasonably apprehend that the judge might not decide the substantive dispute on its legal and factual merits. It is not enough to identify something uncomfortable or adverse. There must be a logical connection between the impugned conduct and the feared departure from impartiality.

Application

1. The solicitor’s conduct occurred against a history of non-compliance

The solicitor issue did not arise in a vacuum. The husband had failed to comply with disclosure obligations, failed to file an Undertaking as to Disclosure, failed to comply with extended directions, failed to appear on an earlier listing, filed adjournment applications, and still had not filed trial material by the final hearing date.

That history mattered because the Court was managing a final hearing in circumstances where the husband’s side had repeatedly failed to put the case in proper order.

The solicitor’s later conduct therefore occurred in the context of a proceeding already affected by delay, non-compliance, non-appearance and adjournment attempts.

2. The triggering conduct was the solicitor leaving court without permission

The critical event was on 12 March 2026. After the husband’s adjournment application was refused, counsel for the husband successfully sought leave to withdraw. The husband’s solicitor also applied for leave to withdraw, but the judge refused that application.

At that point, the solicitor absented himself from the courtroom without leave. The judge’s Associate tried to have him return, but those attempts were futile.

That is the conduct that appears to have triggered the referral. The judgment does not reproduce the referral letter or make disciplinary findings. But the chronology makes clear that the referral followed the solicitor leaving the courtroom without leave after the Court refused his application to withdraw.

For a legal practitioner, that is serious. A solicitor on the record is not free to simply walk out because leave to withdraw has been refused. The Court had refused withdrawal, meaning the solicitor remained professionally involved in the conduct of the matter unless and until properly released.

3. The judge protected the husband despite the solicitor’s conduct

Importantly, Judge Murdoch did not punish the husband by immediately letting the wife run the trial undefended.

After the solicitor left and could not be brought back, the wife applied to proceed with the substantive hearing on an undefended basis. The judge declined that application. Her Honour considered that the husband was likely unaware of what was happening in Court and that it would be unjust to proceed in his absence. The final hearing was adjourned and marked “with priority”.

This point was fatal to the husband’s bias argument. The judge’s actual conduct protected the husband’s procedural position. Rather than proceeding against him in his absence, the Court stopped the trial and gave him another opportunity.

That is difficult to reconcile with an allegation that the judge had lost impartiality against him.

4. The husband tried to convert a practitioner referral into a judicial bias argument

The husband argued that the treatment of Mr E and the referral to the OLSC were aggravating factors creating apprehended bias. He submitted that Mr E had not been afforded procedural fairness, that his evidence had been discarded, and that the judge had allegedly described it as “fantastical”.

The Court rejected that foundation. The husband had not obtained the transcript when making the allegation about the word “fantastical”. The reasons, transcript and audio record did not reveal use of that word. The argument built around that alleged descriptor was therefore misconceived.

The husband also argued that Mr E was deprived of cross-examination. The Court found that no party had asked for Mr E to give oral evidence, and no proper particularisation was provided for the claim that his evidence had been summarily discarded without cross-examination.

5. The referral satisfied the first Ebner step but failed the second

Judge Murdoch accepted that the referral of the solicitor to the OLSC satisfied the first step of Ebner. In other words, it was an identifiable matter that could be considered in the apprehended bias analysis.

But the application failed at the second step. There was no logical connection between the referral and the feared departure from impartiality.

The Court held that a referral of practitioner conduct to a regulator does not determine any issue between the parties and does not adjudicate their substantive rights. No adverse finding was made about either party, their credit, the reliability of their evidence, or the merits of their competing property claims.

That is the key legal distinction:

the solicitor’s conduct may raise professional-regulatory concerns, but that does not mean the judge is biased against the client’s property case.

6. The Court rejected the “co-prosecutor” argument

The husband argued that by referring Mr E to the OLSC, the judge had metaphorically descended from the bench into the advocate’s arena and assumed a “co-prosecutorial” role.

Judge Murdoch rejected that submission. The Court said there was no identified conduct showing advocacy or partiality, and no reasoning explaining how the referral would influence fact-finding. The suggestion that the solicitor’s ongoing involvement might affect the judge’s assessment of the evidence was no more than subjective speculation.

The fair-minded lay observer would understand that judges can distinguish between two separate functions:

1. referring possible practitioner misconduct to a regulator; and
2. deciding the parties’ property dispute according to evidence and law.

The first does not automatically contaminate the second.

7. The referral was about professional conduct, not the merits of the husband’s claim

This is the practical heart of the decision. The Court did not refer the husband. It referred the solicitor.

Nor did the Court find that the husband’s property claim was false, dishonest or hopeless because of the solicitor’s conduct. The referral did not resolve valuation, contributions, financial disclosure, superannuation, property pool issues, or any other substantive issue under Part VIII.

The solicitor’s conduct was collateral to the property dispute. It concerned the proper administration of the proceeding and the professional obligations of a practitioner who remained on the record after leave to withdraw was refused.

8. The adjournment refusal was also not bias

The husband also complained that the judge had contemplated the trial proceeding in his absence after refusing the adjournment application.

Judge Murdoch rejected that too. Refusing an adjournment is an ordinary procedural decision involving delay, prejudice and efficient administration of justice. It does not, without more, determine substantive rights or show prejudgment.

Further, the factual premise failed because the trial did not proceed in the husband’s absence. Once the solicitor left and the husband had no representative protecting his interests, the judge declined to proceed undefended.

Again, the judge’s actual conduct was protective, not prejudicial.

9. The cumulative bias argument failed

The husband tried to rely on the combined effect of the adjournment refusal, the treatment of the solicitor and the referral to the OLSC.

The Court rejected the cumulative argument. Viewed together, the matters concerned case management and practitioner conduct, not the merits of the property dispute. None showed prejudgment of the substantive issues or adverse findings about either party’s credibility.

The asserted apprehension depended on speculation, not reasoned analysis.

10. The recusal application was also waived by delay

Even if the husband had otherwise established a basis for apprehended bias, the application failed because of waiver.

The impugned conduct occurred on 12 March 2026. The recusal application was not filed until 17 June 2026, about three months later and immediately before the substantive hearing was to recommence. The husband remained legally represented throughout. Written submissions supporting the recusal application had been prepared by experienced counsel as early as 7 April 2026, yet no application was filed and no complaint was raised until just before the adjourned trial.

Judge Murdoch held that a party aware of facts said to justify recusal must act promptly. A litigant cannot generally wait, watch how the forensic landscape develops, file trial material, and then seek disqualification shortly before hearing.

Conclusion

The husband’s recusal application was dismissed.

The solicitor’s conduct was serious because, after the Court refused his application for leave to withdraw, he left the courtroom without leave and could not be brought back despite the Associate’s attempts. That conduct prompted referral to the Office of the Legal Services Commissioner.

However, the referral did not create apprehended bias. It did not determine the parties’ substantive property rights, did not involve findings about either party’s credit or the merits of their property claims, and did not logically suggest that the judge would decide the property case otherwise than according to law and evidence.

In any event, the husband had waived the complaint by waiting about three months before filing the recusal application, despite remaining legally represented and having recusal submissions prepared more than two months earlier.

🧠 Take-Home Lesson

This case is a warning on two fronts.

First, for lawyers: you do not simply walk out of Court when leave to withdraw has been refused. If the Court refuses withdrawal, the practitioner remains before the Court and must deal with that position professionally. Leaving without leave can raise serious regulatory concerns because it may abandon the client, disrupt the hearing, and interfere with the orderly administration of justice.

Second, for litigants: a complaint about your lawyer being referred to a regulator is not automatically a recusal point. The appeal or recusal question is not whether the judge was unhappy with the lawyer. The question is whether that event would cause a fair-minded observer to reasonably apprehend that the judge might not decide the actual dispute impartially.

Here, the judge’s conduct actually protected the husband. Rather than proceed undefended after the solicitor left, the Court adjourned the trial and marked it with priority. That was inconsistent with the suggestion that the Court was biased against him.

The sharp practical lesson is this: professional misconduct concerns and substantive party rights are different things. A judge may refer a lawyer to a regulator while still remaining impartial in the case between the parties.