Recusal in Family Law Case Management: Does delay in publishing reasons create a reasonable apprehension of bias requiring the Judge to step aside from a vexatious proceedings application?

Based on the authentic Australian judicial case Pierson & Romilly (No 2) [2025] FedCFamC1F 239, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)

Presiding Judge: Boyle J

Cause of Action: Family law procedural application for recusal in the context of a pending application under s 102QB of the Family Law Act 1975 (Cth)

Judgment Date: 27 March 2025

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Recusal
Keyword 3: Apprehended bias
Keyword 4: Ex tempore reasons and delay
Keyword 5: Case management integrity
Keyword 6: Vexatious proceedings application (s 102QB)

Background

This was not a trial about whose version of family events was true. It was a procedural crisis point in ongoing family law proceedings: the Applicant asked that the sitting Judge step aside and that another Judge hear an application brought by the Respondent under s 102QB. The Applicant’s central concern arose from delay and irregularity in the publication of orders and reasons relating to an earlier ex tempore decision. The Court was required to decide whether the circumstances were such that a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to future determinations.

Core Disputes and Claims

The legal focus was narrow but consequential:

1. Whether the circumstances surrounding the delayed publication of orders and reasons after an ex tempore judgment created a reasonable apprehension of bias according to the governing test in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63.

2. Whether, in light of that apprehension and the Applicant’s complaint to a judicial body, it was appropriate for the Judge to continue dealing with the matter, including the Respondent’s pending s 102QB application.

Relief sought, in substance:

Applicant: Orders that another Judge hear the Respondent’s s 102QB application, effectively requiring the current Judge to recuse.

Respondent: Continuation of the listing and case management path, and the hearing of the pending application without avoidable delay.

Chapter 2: Origin of the Case

This dispute began with something that seems administrative, but in litigation can feel existential: time.

A prior decision was delivered ex tempore. In an ex tempore decision, reasons are given orally, often at the end of a hearing or shortly after. Parties depend on those reasons to understand what the Court decided, why it was decided, and whether an appeal is viable.

Here, there was a significant delay in the publication of orders and settled reasons after the ex tempore decision. The Applicant treated that delay not merely as inconvenience, but as a procedural irregularity that, in her view, undermined confidence in the Court’s handling of her matter. She drew concerns from the delay and from features she perceived in the reasons. An appeal had been filed. In parallel, the Respondent had an application on foot under s 102QB.

The Applicant then filed an application in a case seeking, among other things, that another Judge hear the Respondent’s s 102QB application. The Applicant also stated that she had made a complaint to the Judicial Commission about the Judge and the conduct of the matter.

The litigation setting matters. In family law, cases often extend over time, with multiple interim steps and intense personal consequences. When the procedural machinery falters, even briefly, it can magnify mistrust. This case is a concentrated example: a procedural delay triggered a legal question about the appearance of impartiality, and the Court was required to address it directly, rather than pushing it to the margins.

Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. Application in a Case filed 19 March 2025 seeking orders that another Judge hear the Respondent’s s 102QB application.

2. Applicant’s affidavit evidence stating:

   • A complaint had been made to the Judicial Commission concerning the Judge and conduct of the matter.
   • Concerns arising from the delay in publication of orders and reasons after an ex tempore judgment.
   • Criticisms of the reasons which, in the Court’s view, largely overlapped with matters for the appeal.
3. The procedural history relied upon as objective context:
   • Ex tempore judgment delivered 12 February 2025.
   • Orders published 7 March 2025.
   • Settled reasons available from 12 March 2025.

The Applicant’s case was not framed as a mere grievance. It was positioned as a risk to impartial adjudication going forward, with particular focus on the pending s 102QB application.

Respondent’s Main Evidence and Arguments

The published reasons are brief and do not detail extensive evidentiary material from the Respondent. The Respondent was represented by counsel. The Respondent’s practical stance can be distilled from the procedural posture:
– The Respondent had an application under s 102QB listed for interim hearing.
– The Respondent would be concerned to avoid unnecessary delay and to have the application managed and heard.

Core Dispute Points

1. The legal threshold: What a fair-minded lay observer might reasonably apprehend, applying Ebner.

2. The factual trigger: Whether delay in publishing orders and reasons, acknowledged as significant and inappropriate, could logically connect to a future departure from impartial adjudication.

3. The practical question: Whether the integrity of case management and the perception of fairness required reallocation, even if the Judge considered that the Applicant’s complaints about the reasons would largely be resolved through appeal processes.

Chapter 4: Statements in Affidavits

Affidavits are where litigation becomes a disciplined narrative. They convert lived experience and procedural history into a legally usable account.

Here, the Applicant’s affidavit performed three strategic functions:

1. It anchored the request for recusal in verifiable procedural events: dates of judgment, publication of orders, availability of settled reasons.

2. It elevated personal mistrust into a legally recognisable concern by linking it to a complaint lodged with a judicial oversight body.

3. It reframed delay as more than inconvenience: as a circumstance capable of creating apprehension about future impartiality, particularly in a high-stakes procedural application such as s 102QB.

The Court’s reasons indicate that some of the Applicant’s criticisms of the reasons themselves were better addressed by appeal. That distinction is important. An affidavit may attempt to relitigate the merits through the language of bias. Courts resist that, because apprehended bias is not a backdoor appeal. Yet affidavits can still succeed in a recusal application if they identify objective circumstances that bear on perceptions of impartiality.

Strategic Intent Behind Procedural Directions Regarding Affidavits

In a recusal application, the Court needs a precise map:
– What is the alleged conduct or circumstance?
– What is the alleged logical connection to future decision-making?
– Why is the apprehension reasonable?

Affidavits are the vehicle that prevents the application from dissolving into generalised dissatisfaction. They force specificity. Even where the Court ultimately recuses, affidavits still function as procedural discipline: they define the issue, confine it, and protect the integrity of the judicial process by ensuring the decision is responsive to articulated facts rather than impressions alone.

Chapter 5: Court Orders

Before the final determination, the Court had:
– An interim hearing listed for 1 April 2025 at 10.00 am.
– A pending application under s 102QB.
– Existing orders dated 12 February 2025, including an Order 3 later vacated.

The Judge was required to make orders that preserved procedural fairness, minimised prejudice, and restored confidence in the litigation pathway.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing was a procedural contest, not a factual trial. The decisive tension was between two imperatives:
– The duty of the Court to continue to sit and determine matters according to law.
– The duty of the Court to protect the appearance of impartiality, because justice must be seen to be done.

Process Reconstruction: Live Restoration

The Court identified the relevant application and the stated grounds. The Applicant’s affidavit was treated as central because it provided the factual basis for the apprehension claim: the delay, the Applicant’s interpretation of what that meant, and the complaint to the Judicial Commission.

A recusal hearing rarely turns on dramatic contradiction. Its critical moments are usually logical:
– Whether the asserted circumstances are objectively established.
– Whether the legal test is properly applied.
– Whether the apprehension is reasonable in the eyes of the fair-minded observer.

The Court acknowledged the delay and accepted it should not have occurred. That acknowledgment matters because it supplies objective foundation. A recusal application is more likely to succeed where the complained-of circumstance is real, rather than speculative or rhetorical.

Core Evidence Confrontation

The most decisive evidence was the procedural timeline and the existence of a complaint:
– The delay between ex tempore delivery and publication of orders and settled reasons.
– The complaint made to the Judicial Commission.

The Court treated those facts as the platform for assessing perceptions. Importantly, the Court also recognised the lived reality of litigation: reasons are not cosmetic. Reasons are what allow a party to understand, accept, or challenge a decision. Delay can therefore translate into a sense of procedural disempowerment.

Judicial Reasoning with Judicial Original Quotation

The Court applied the governing test from Ebner and focused on perception, logic, and reasonableness.

A judge should disqualify themselves if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind.

This formulation was determinative because it places the focus on objective appearance, not subjective confidence. The test is not whether the Applicant distrusted the Judge, but whether an informed, fair-minded observer could reasonably apprehend a lack of impartiality, given the proven circumstances.

The Court then explained the analytical method demanded by Ebner:

It requires identifying what is said to have been done, then any logical connection to possible future departure from deciding on the merits.

This matters because it prevents recusal applications becoming tactical manoeuvres. The Court must connect the alleged circumstance to future risk. Here, the Court identified that the delay was a real irregularity, accepted it was significant, and accepted that complaint about it was not unreasonable. The Court then considered that the pending s 102QB application would be best dealt with by a Judge in whom the Applicant had confidence, because perceptions of impartiality were at stake.

In practical terms, the Court determined that continuing could contaminate the legitimacy of future steps. The risk was not merely that the Judge would be biased, but that the process would appear biased, undermining acceptance of any subsequent outcome.

Chapter 7: Final Judgment of the Court

The Court made orders that reshaped the case management path:

1. The listing for interim hearing on 1 April 2025 at 10.00 am was vacated.

2. Boyle J was recused from further dealing with the matter.

3. The matter was allocated to the chambers of Campton J for further directions to be made for the hearing of the s 102QB application.

4. Order 3 of the orders dated 12 February 2025 was vacated.

These orders collectively did two things:
– They removed the immediate hearing date to allow transfer without procedural confusion.
– They ensured a new Judge would control directions and the hearing path for the s 102QB application, protecting perceived fairness.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case has jurisprudential value despite its brevity. It shows how recusal principles operate in real life when the trigger is not a prior relationship, a financial interest, or a public comment, but a procedural irregularity that becomes a credibility event for the institution of the Court itself.

The decision also illustrates a disciplined form of judicial accountability: the Judge expressly acknowledged the delay and apologised, then treated the consequence not as reputational damage to be defended against, but as a perception risk to the fairness of future steps. That is a powerful example of institutional self-correction.

Most importantly for self-agency, it demonstrates a practical truth: procedural rights are not ornamental. When you insist on timely reasons, clear orders, and fair case management, you are not being difficult. You are protecting your capacity to participate meaningfully, to appeal effectively, and to make rational litigation decisions.

Judgment Points

1. The Court treated delay as a legally relevant fact, not a mere inconvenience.
   The Court accepted the delay was significant and should not have occurred. That acceptance supplied objective footing for the Applicant’s concern.

2. The Court separated appeal issues from recusal issues, but still recognised the procedural harm.
   Criticisms about reasons may belong to an appeal. But the irregularity that inhibited timely appeal preparation can still feed the perception analysis.

3. The Court focused on perception in a future-facing way.
   The central concern was not re-judging the past, but protecting the integrity of future determinations, particularly the s 102QB application.

4. The Court recognised that high-stakes procedural applications demand heightened confidence in the process.
   A vexatious proceedings application can have drastic consequences for a litigant’s ability to bring future applications. That context makes perception and legitimacy even more critical.

5. The Court treated the existence of a complaint as an accelerant of apprehension risk.
   Not because a complaint proves bias, but because it can make a fair observer ask whether future dealings might be affected, consciously or unconsciously, by the complaint’s existence.

6. The Court weighed prejudice and found minimal harm in transfer and vacating the hearing date.
   The Court considered delay and found the Respondent’s application would not be prejudiced because an appeal had already been filed and the listing could be reset under new management.

7. The Court adopted a protective approach to justice being seen to be done, even at the cost of departure from strict instinct to continue sitting.
   The Judge acknowledged this was somewhat a departure from the typical approach, but prioritised public confidence and the Applicant’s confidence for the particular application.

8. The remedy was structural, not rhetorical.
   The Court did not merely state principles. It vacated listings, recused, reallocated, and vacated an earlier order, ensuring the process reset with clarity.

Legal Basis

The Court referred to, and applied, the apprehended bias test as articulated in Ebner v The Official Trustee in Bankruptcy [2000] HCA 63.

The Court’s reasoning also operated within the procedural and substantive context of the Family Law Act 1975 (Cth), including the pending application under s 102QB, and within the Court’s case management powers to vacate listings, allocate matters, and vacate prior orders where necessary to ensure fairness.

Evidence Chain

Conclusion: Recusal and reallocation were appropriate.

Evidence and procedural facts supporting that conclusion:

1. Ex tempore judgment delivered on 12 February 2025.

2. Orders published on 7 March 2025.

3. Settled reasons available from 12 March 2025.

4. The Court accepted the delay was significant and should not have occurred.

5. The Applicant made a complaint to the Judicial Commission.

6. A s 102QB application was pending, and the Applicant sought that another Judge hear it.

7. An appeal had been filed by the Applicant, reducing immediate prejudice to the Respondent from vacating the 1 April hearing.

Judicial Original Quotation

The Court’s reasoning turned on the legal test and its disciplined method of application.

Justice should both be done and be seen to be done.

This statement mattered because it framed the Court’s duty as public-facing as well as outcome-focused. The decisive issue was the legitimacy of the process, not only the correctness of future rulings.

The complaint made by the Applicant about the publishing of reasons and orders is not unreasonable.

This was pivotal because it anchored the apprehension analysis in reasonableness. The Court did not characterise the Applicant’s concern as irrational. It treated it as a defensible reaction to a real procedural lapse.

Analysis of the Losing Party’s Failure

In this particular judgment, there is no conventional “losing party” in the usual adversarial sense because the Court granted the relief that removed the Judge from the matter. However, the analysis still yields an instructive failure pattern for any party resisting recusal:

1. Underestimating procedural irregularities as perception triggers.
   Where delay affects reasons and orders, and an appeal pathway is engaged, courts may treat the irregularity as more than administrative.

2. Failing to neutralise the logical connection limb.
   A resisting party must confront the Ebner framework directly: even if bias is denied, the question is whether a fair observer could reasonably apprehend risk. Simply insisting on judicial professionalism may not be enough where objective circumstances exist.

3. Not addressing the practical stakes of the application under management.
   If the pending application is one that can profoundly affect a party’s litigation capacity, courts may be more sensitive to the appearance of fairness.

4. Overlooking that a complaint, while not proof, can amplify perception risk.
   Once a complaint is made, the case management environment changes. The question becomes not whether the complaint is justified, but what it does to the appearance of impartiality.

Key to Victory

The successful thrust in this matter was the Applicant’s ability to convert concern into legally relevant structure:

• She identified objective procedural facts, including specific dates and the nature of the delay.
• She linked those facts to litigation consequences, especially appeal readiness and confidence in case management.
• She placed the issue squarely within the apprehended bias framework by seeking recusal for future hearings, not relitigation of substantive outcomes.

Implications

1. Your procedural rights are real power. When orders and reasons are delayed, you can respectfully insist on clarity and timeliness because that is how you protect your ability to decide, to comply, and to appeal.

2. A recusal application is not about attacking a Judge. It is about protecting the legitimacy of the process. If you frame your concern as an objective perception issue, you give the Court a lawful path to restore confidence.

3. Specificity is self-protection. Dates, documents, and procedural history can do more for your case than emotion ever will. Build your narrative around verifiable facts.

4. Choose your battles with strategy. If your complaint is really about legal error, appeal may be the appropriate path. If your complaint is about the fairness of future decision-making, recusal principles may be engaged. Knowing the difference is a form of agency.

5. Never confuse confidence with control. You cannot control the other party, their lawyers, or the tempo of litigation. But you can control how you record events, how you present evidence, and how you ask the Court to correct the process when it drifts.

Q&A Session

Q1: Does a delay in publishing reasons automatically mean a Judge must be recused?
A: No. Delay alone does not automatically satisfy the apprehended bias test. The Court will assess the specific circumstances, including whether the delay is significant, whether it affects procedural fairness, and whether a fair-minded lay observer could reasonably apprehend that the Judge might not bring an impartial mind to future issues.

Q2: If I believe a Judge made errors in reasons, should I apply for recusal or appeal?
A: Typically, legal or factual errors in reasons are addressed by appeal, not recusal. Recusal focuses on impartiality and perception, not correctness. However, where procedural irregularities create an objective appearance issue affecting future decisions, a recusal application may be relevant. Strategic choice depends on the precise facts and procedural posture.

Q3: What role does a complaint to a judicial body play in a recusal decision?
A: A complaint does not prove bias. But it can become part of the factual matrix the Court considers when assessing whether a fair-minded observer might reasonably apprehend a lack of impartiality in future dealings, especially if there is already an acknowledged procedural irregularity.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Family Law Procedure – Recusal application concerning apprehended bias in ongoing case management involving a pending s 102QB application

Judgment Nature Definition: Final Judgment on the recusal application, with consequential procedural orders vacating listings and reallocating the matter

2. Self-examination of Core Statutory Elements

Category Loaded: ⑨ Civil Litigation and Dispute Resolution

Core Test Standards and Practical Checkpoints, expressed for reference only and to be applied carefully to the specific facts and procedural context.

Core Test: Jurisdiction and Procedural Pathway

1. Jurisdictional anchor
   • Identify the Court and division managing the proceeding.
   • Confirm the matter falls within family law jurisdiction under the Family Law Act 1975 (Cth) and the Court’s procedural rules.
   • Confirm whether the application is interlocutory or finally determinative of a discrete question.
2. Nature of relief sought
   • Is the relief substantive, procedural, or both?
   • A recusal application is procedural relief aimed at protecting impartial adjudication and the appearance of impartiality.
3. Proper procedural vehicle
   • Confirm that the application is brought in a form permitted by the Court’s rules, supported by affidavit evidence where factual assertions are made.

Core Test: Apprehended Bias, Structured as a Civil Procedure Standard

While the governing authority is Ebner, the discipline of civil procedure still applies: the application must be coherent, evidence-based, and logically framed.

Step 1: Identify the complained-of circumstance
– Example circumstances can include:
– Delay or irregularity in delivery or publication of reasons and orders
– Conduct in court suggesting prejudgment
– Extrajudicial statements
– Relationships or interests that could affect neutrality

Step 2: Prove the circumstance with admissible material
– Use affidavit evidence grounded in documents and procedural records:
– Transcript references
– Court file dates
– Orders as entered
– Communications that are properly in evidence

Step 3: Establish the logical connection to future decision-making
– The applicant must show how the circumstance could rationally connect to a risk that the Judge might not bring an impartial mind to future issues.
– This is often where applications fail if they rely only on dissatisfaction with past rulings rather than a forward-looking perception risk.

Step 4: Establish reasonableness from the viewpoint of the fair-minded observer
– The observer is informed, rational, and not overly suspicious.
– The apprehension must be reasonable, not merely asserted.

Step 5: Consider practical consequences and prejudice
– If recusal is ordered, assess:
– Whether vacating listings is necessary
– Whether a new case management Judge should take over
– Whether delay causes material prejudice
– Whether the matter can be efficiently reallocated without injustice

Core Test: Limitation Period and Timing in Civil Procedure Context

Even in family law procedure, timing often shapes outcomes.

1. Limitation periods may be less directly relevant to recusal, but timing is still critical:
   • Appeal deadlines may be affected by delay in reasons.
   • Listing dates may require urgent relief to avoid prejudice.
2. Filing discipline:
   • Bring procedural applications promptly once the relevant circumstance arises, because delay can undermine urgency and perceived genuineness.
3. Evidence preservation:
   • Keep a dated chronology and retain formal documents and file notes. This tends to reduce risk of factual dispute about procedural history.

3. Equitable Remedies and Alternative Claims

A recusal application sits primarily in public law principles of fairness and judicial integrity, but alternative or supplementary doctrines may still matter depending on what problem the party is trying to solve.

Procedural Fairness

Where the deeper concern is not bias but unfair process:
– Was the party given a genuine opportunity to be heard?
– Were adverse findings made without giving notice and chance to respond?
– Was there an apprehension of bias in the conduct of hearings?

Practical note: Procedural fairness arguments tend to be most effective when tied to identifiable procedural events, rather than general dissatisfaction.

Ancillary Claims and Strategic Reframing

If recusal is not achievable, parties may consider:
– Case management directions seeking clearer timetables for reasons, orders, and procedural steps
– Applications for expedited provision of transcript or reasons where appeal readiness is impaired
– Appeal pathways, focusing on error rather than impartiality

These alternatives often carry relatively lower risk than a recusal application if the factual foundation is thin.

4. Access Thresholds and Exceptional Circumstances

Regular Thresholds

1. Threshold for recusal based on apprehended bias
   • The fair-minded lay observer test must be satisfied.
   • The complaint must be reasonable and grounded in objective circumstances, not mere displeasure with outcomes.
2. Threshold for practical urgency
   • If a hearing is imminent, the applicant must show why the issue cannot wait and why the existing listing should be vacated.
3. Threshold for appeal readiness concerns
   • If reasons are delayed, a party may argue that their ability to appeal is impaired, which can intensify the perception analysis.

Exceptional Channels

1. Significant procedural irregularity with acknowledged factual basis
   • Where a court accepts an irregularity occurred, and it materially impacts participation or appeal readiness, recusal risk may rise.
2. Complaint to oversight body combined with objective procedural concern
   • A complaint alone does not compel recusal, but combined with a proven irregularity, it may contribute to a reasonable apprehension analysis.
3. High-stakes pending application affecting future litigation capacity
   • If the next step is an application that may restrict a party’s ability to litigate, courts may be more attentive to the appearance of fairness.

Suggestion: Do not abandon a potentially valid procedural concern simply because you fear it will be viewed as confrontation. Your strongest protection is respectful precision: identify the objective circumstance, explain the procedural consequence, and tie it to the legal test.

5. Guidelines for Judicial and Legal Citation

Citation Angle

It is recommended to cite this case in submissions involving:
– Recusal and apprehended bias principles in family law case management
– The role of procedural irregularities in triggering perception concerns
– The interaction between appeal readiness and procedural fairness
– Case management steps to preserve public confidence in the integrity of proceedings

Citation Method

As Positive Support:
– Where your matter involves significant procedural irregularity affecting reasons or orders, and the relief sought is reallocation to preserve the appearance of impartiality, this authority can support the proposition that acknowledged procedural concerns can justify recusal and vacating listings.

As a Distinguishing Reference:
– If the opposing party cites this case to argue that any delay warrants recusal, you can distinguish by emphasising that the decision turned on the specific combination of a significant acknowledged delay, perception concerns, and the procedural context of the pending application.

Anonymisation Rule:
– In your narrative and submissions, use procedural titles such as Applicant and Respondent. Where formal citation requires the case name, keep the citation form as published while avoiding personal identification beyond what the Court has approved for publication.

Conclusion

This judgment is a reminder that procedural integrity is not a technicality. It is the mechanism that makes fairness real. When delay, irregularity, or perception risk threatens that mechanism, the law provides tools to correct the course, and your agency lies in using those tools with calm precision, factual discipline, and strategic clarity.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Golden Sentence: Your power in litigation grows the moment you treat procedure not as background noise, but as the architecture of justice you are entitled to insist upon.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Pierson & Romilly (No 2) [2025] FedCFamC1F 239), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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