Introduction
Q1: The judge keeps interrupting me and seems hostile. Is that bias?
A: Not necessarily. A judge intervening during your evidence does not automatically mean they are biased. But if the interruptions are extreme and sustained over multiple days, the cumulative effect may cross the line into apprehended bias. Reference: Spargo & Spargo [2025] FedCFamC1A 174
Q2: The judge found I was lying. Does that mean they were biased against me?
A: No. Assessing your credibility is a core part of the judge's job. A finding that you were not truthful reflects the judge's evaluation of the evidence, not bias against you personally. Reference: Cullen & Cullen [2018] FCCA 851
Q3: The judge and the other side's lawyer seem friendly. Should I be worried?
A: It depends on how far it goes. Lawyers and judges often know each other professionally, and that alone is not bias. But if a judge is having private communications with the other side's lawyer while your case is being decided, that can amount to apprehended bias. Reference: Charisteas v Charisteas [2021] HCA 29
What counts as judicial bias under Australian family law?
Australian law recognises two types of judicial bias: actual bias and apprehended bias. Actual bias means the judge has a closed mind and has already decided the outcome before hearing your case. In practice, actual bias is almost impossible to prove. Nearly every bias claim that succeeds is based on apprehended bias.
Apprehended bias does not require you to prove the judge is actually biased. Instead, the test asks whether a fair-minded member of the public, knowing all the relevant facts, would reasonably worry that the judge might not be impartial. The High Court set out this test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63.
"whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide."
This is called the double might test. It has two steps. First, identify what specific conduct or circumstance might lead the judge to decide the case on something other than its merits. Second, explain the logical connection between that conduct and the risk of an unfair decision. Both steps must be satisfied. A vague feeling of unfairness is not enough.
The observer in this test is not a lawyer. They are an ordinary member of the public. As the High Court said in Charisteas v Charisteas [2021] HCA 29: the hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. This matters because the test is not about how lawyers view judicial conduct. It is about how a reasonable person from the community would view it.
When does conduct actually cross the line?
Most bias claims fail, but some do succeed. The cases where apprehended bias was established involve conduct that goes well beyond a judge being firm or asking tough questions.
During a long-running property trial in the Family Court, it was discovered that the trial judge had been having private communications with the wife's barrister. They met for coffee or drinks, spoke by telephone, and exchanged text messages, all while the case was still being decided. These communications were not disclosed to the husband or his legal team.
The husband applied for the judge to step aside on the basis of apprehended bias.
Outcome: The High Court agreed. It found that any reasonable member of the public would be concerned about a judge having undisclosed private contact with one side's lawyer during the trial. The case was sent back for a completely new hearing before a different judge.
"Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party."
Another example is Spargo & Spargo [2025] FedCFamC1A 174, where the appeal court found apprehended bias based on the cumulative effect of a judge's conduct over three days of a parenting trial. The judge had cross-examined the father at length, made comments suggesting a bond with the mother, and used an aggressive tone. No single comment on its own was enough, but taken together, they crossed the line.
What these cases show is that apprehended bias requires specific, identifiable conduct that would concern a reasonable member of the public. A judge ruling against you, or being firm with you, is not enough. The cases that succeed involve conduct like secret communications with the other side or sustained aggressive behaviour over multiple days.
Why does your situation probably not meet the legal test for bias?
Your feeling that the judge is not on your side is real, and it matters to you. But the legal threshold for apprehended bias is intentionally high. If judges could be removed every time a party felt unhappy, no case would ever be finished. The system is designed to protect judicial independence, so that judges can make difficult decisions without worrying about being accused of bias every time they rule against someone.
Here are the most common situations that feel like bias but do not meet the legal test.
The judge found you were not credible
This is the single most common reason people believe the judge is biased. The judge assessed your evidence, weighed it against the other party's evidence, and concluded that parts of your account were not reliable. That hurts. But it is exactly what judges are paid to do.
During a parenting trial, the father was self-represented and sent numerous abusive emails to the court and the Independent Children's Lawyer (ICL). The emails called previous court decisions stupid and pitiful, and threatened to sue the judge. The ICL included these emails in an affidavit filed during the trial.
The father then applied for the judge to step aside, arguing that because the judge had now seen these offensive emails, the judge could not possibly be impartial.
Outcome: The application was dismissed and the father was ordered to pay significant costs. The court held that you cannot create the conditions for bias through your own misconduct and then complain about it.
"The father cannot benefit, in the sense of procuring a different judge and perhaps also procuring time and (intentionally or not) delaying the proceedings, from his own actions, namely his lengthy and abusive emails to the Court."
The court also pointed out that family law judges regularly deal with intemperate correspondence from litigants under enormous stress. Being familiar with difficult material does not make a judge biased. If it did, any litigant could force a new judge simply by sending offensive emails.
The judge was aggressive, interrupted you, or seemed impatient
A judge who asks pointed questions is not necessarily biased. Judges in parenting cases have broad powers under Division 12A of Part VII of the Family Law Act to actively manage proceedings and ask their own questions. A judge who pushes you hard on an inconsistency in your evidence is doing their job.
But there is a line. And Spargo & Spargo [2025] FedCFamC1A 174 shows how high the bar is.
During a part-heard parenting trial, the father applied for Judge Bertone to step aside. He argued that over the first three days of the hearing, the judge had crossed the line from managing the case to acting as the mother's advocate. His complaints included: the judge cross-examining the father at length, frequently interrupting his counsel's cross-examination, using an aggressive and intimidating tone, making belittling remarks, and making comments to the mother while she was giving evidence that suggested a mutual association of allegiance and secrecy between them.
Judge Bertone dismissed the recusal application. She analysed each complaint individually and found that, in isolation, none of them was severe enough to establish apprehended bias.
Outcome: The appeal court disagreed with the approach. Justice Strum held that isolating each complaint was an error. The correct approach is to consider the combined and cumulative effect of the judge's conduct. Taken together, the pattern of behaviour over three days was enough for a reasonable observer to apprehend bias. The trial was sent back for a rehearing before a different judge.
"to isolate each complaint... fails to take into account the effect on the fair-minded lay observer the combined and cumulative effect of the comments."
Spargo shows just how high the bar is: it took three full days of sustained aggressive conduct, including comments suggesting a personal bond with one party, before the appeal court found apprehended bias. A judge interrupting you once, asking a tough question, or being short with you during a stressful hearing is nowhere near that threshold.
| Comparison | Spargo & Spargo [2025] | Cullen & Cullen [2018] |
|---|---|---|
| Who was challenged | Judge | Judge |
| Basis of the claim | Cumulative aggressive conduct over 3 days, comments suggesting allegiance with one party | Judge had seen the father's abusive emails to the court |
| Specific misconduct identified | Yes — sustained pattern of conduct identified | No — the father's own conduct created the situation |
| Outcome | Bias found, retrial ordered | Bias claim dismissed, costs ordered |
The difference between these two cases is simple. In Spargo, the father identified specific judicial conduct that was independently problematic. In Cullen, the father tried to use his own misconduct as the basis for a bias claim. The court will not let you engineer a reason for a judge to step aside.
If you are dealing with a parenting order dispute where you believe the other party or the court process is treating you unfairly, you might also want to understand what happens when a parenting order is breached or how to file a contravention application. For guidance on how courts weigh a child's own preferences, see Can a Child Choose Which Parent to Live With?.
What should you do if you genuinely believe the judge is biased?
If after reading the above you still believe your situation involves real apprehended bias, not just unfavourable rulings, here is what you need to know.
Timing is everything
You must raise a bias objection as soon as you become aware of the issue. If you wait until after the judge makes an unfavourable ruling and then claim bias, the court will view your application with suspicion. Delay suggests you were willing to accept the judge as long as things were going your way. That undermines your credibility.
What you need to show
The Ebner test requires two things:
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Identify the specific conduct. You cannot say the judge just felt unfair. You must point to something concrete: a comment the judge made, a relationship with a party or lawyer, a procedural decision that cannot be explained by legitimate case management. As the court said in Kingley & Arndale (No. 2): it is fundamental that even in cases of alleged apprehended bias, some actual conduct of the person sought to be impugned be identified.
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Explain the logical connection. You must articulate why that specific conduct would lead a fair-minded observer to worry that the judge might not decide the case on its merits. A judge asking tough questions connects logically to case management, not to bias. A judge having secret drinks with the other side's lawyer connects logically to partiality.
What happens if your application fails
A failed recusal application has real consequences. The same judge will continue hearing your case, now knowing you tried to have them removed. If your application was weak or based on nothing more than disagreement with rulings, you will have damaged your credibility without gaining anything. The court may also order you to pay the other party's costs for the wasted time.
Practical steps
- Keep a record of the specific conduct as it happens. Note the date, what was said or done, and who was present.
- Raise the issue at the earliest opportunity. Do not wait for the outcome.
- Get legal advice before filing a recusal application. The legal test is precise, and a poorly framed application will fail.
- If the bias is serious enough, consider whether an appeal is the better route. In Spargo, the father's recusal application was dismissed by the same judge, but he succeeded on appeal.
- Do not send angry correspondence to the court. As Cullen shows, this will only be used against you.
Summary
The court disagreeing with you is not bias. Adverse findings are the judge's job, not evidence of prejudice.
Apprehended bias has a precise legal test. You must identify specific conduct and explain why a reasonable person would worry about impartiality.
Most feelings of unfairness do not meet the legal threshold. Credibility findings, tough questions, and procedural rulings are normal parts of a trial.
The bar is high for a reason. If judges could be removed whenever a party felt unhappy, no case would ever reach a conclusion.
Timing matters as much as substance. Raise your concern immediately, not after an unfavourable ruling.
Get legal advice before acting. A failed recusal application can damage your credibility and cost you money.
