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When you walk into a courtroom, it’s only natural to assume the judge hearing your case has no preconceptions or personal interests that would sway their decision. In family law, where outcomes can deeply affect day-to-day life—be it for parenting arrangements, property settlements, or divorce—the possibility of judicial bias (even if just a suspicion) can make the whole process feel unfair. In these situations, a party might ask the judge to recuse themselves, a term meaning “step aside,” based on what’s called an “apprehension of bias.”
Below is a closer look at why recusal matters in family law, how Australia’s High Court has shaped the test for “reasonable apprehension of bias,” and the key tension between a judge’s obligation to hear your case (the “duty to sit”) and the duty to remain impartial.
Important Note: This article is not legal advice. It’s just an overview to help you grasp the general concepts. If you’re worried about bias or need specific guidance, please reach out to Hillcrest Family Lawyers or another qualified professional.
Family law usually touches on deeply personal issues—like Child Custody, Divorce, or splitting up property. If there’s even a whisper that the judge has made up their mind beforehand or has some hidden agenda, it can rattle everyone’s trust in the legal process.
In simple terms, if a judge has a conflict of interest or there’s a genuine worry they aren’t neutral, the judge might step away from the case. That’s the recusal process. It can happen voluntarily, or because one of the parties formally requests it.
There’s a flipside to recusal, though. Judges also have a responsibility to hear the cases assigned to them. We don’t get to pick which judge we want, and judges don’t generally get to pick which cases they want to handle. This is sometimes called the “duty to sit.” Basically, judges shouldn’t give in too quickly to demands they step aside—otherwise, people might try to pick a judge more favourable to their cause.
Australia’s High Court uses what’s commonly known as the “double might” test to decide if a judge’s perceived bias is serious enough to warrant recusal. The question is:
“Would a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions the judge is required to decide?”
The court looks for two key elements:
If a party can show a real, logical possibility the judge won’t be fair, then recusal often follows.2.2 The “Fair-Minded Lay Observer”Our courts don’t look at this through the lens of a legal expert or a cynic; instead, they step into the shoes of a reasonable onlooker—someone who understands, in broad terms, how courts work but doesn’t have specialized legal training.
This observer is neither hyper-suspicious nor blindly trusting.2.3 Apprehended vs. Actual BiasIn most recusal applications, the argument is about “apprehended bias,” not “actual bias.” In other words, do we have a genuine fear the judge is biased?
That’s different from proving the judge is biased in fact. The law sets the bar high because it wants to protect the integrity of the system without letting parties abuse the process whenever they’re unhappy with a hearing.
Judges can’t easily walk away from a case. They’re supposed to stick to their post unless there’s a good reason not to. As Sir Anthony Mason famously put it, if judges gave in too readily, people might fish for a judge they think is more sympathetic.
Remember, though, each scenario depends heavily on details. Judges often make strong comments or ask pointed questions as part of normal case management, and that alone doesn’t usually amount to bias.
If you feel uncomfortable about the judge’s potential partiality, you or your lawyer would typically address it directly with that judge. In some instances, a formal motion is filed; in others, a verbal (ore tenus) application is enough.
Don’t wait until the judge has already delivered an unfavourable ruling to complain about bias. Courts often view delayed objections as tactics rather than genuine concerns. If you spot a problem, raise it immediately.
The judge will decide if there’s a genuine basis for recusal. If the judge refuses to step down, the case moves forward—but you may have grounds to appeal later, arguing that the judge should have recused themselves.
Another judge will take over your matter. Keep in mind this can slow down your case and might increase your legal costs. It’s one reason courts take a recusal request very seriously.
The Federal Circuit and Family Court of Australia aims to resolve family law matters as smoothly as possible. This means judges can make quick decisions on urgent issues—even verbally, without formal written documents. Some litigants argue that speed or a forthright style indicates bias. Generally, though:
Recusal serves a vital purpose: making sure your court proceedings remain fair, transparent, and free of improper influence. But it’s not meant for every situation where you don’t like how a hearing went. Under the “double might” test set out by the High Court, there needs to be a genuine, reasonable concern that the judge can’t handle your case with an unbiased perspective. At the same time, judges have a responsibility to hear the cases they’re assigned, so they shouldn’t step away too easily.
If you’re stuck in a complex family law dispute and believe the judge may be unable to remain impartial, don’t navigate these waters alone. Speak with a legal professional—like our team at Hillcrest Family Lawyers—who knows the ins and outs of family law in Australia. The stakes are high, and you deserve a process that’s balanced and fair.
Hillcrest Family Lawyers is headquartered in Sydney, NSW, offering premium services across Australia for complex family law disputes.
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