High Court Appeal on Ground of Apprehended Bias – Charisteas v Charisteas

Milos Supljeglav

Managing Director
Accredited Family Law Specialist
Posted on 11/10/2021, Last Updated on 27/11/2023

We are pleased to announce that our Appeal before the High Court of Australia in the case of Charisteas v Charisteas has been successful.  Our Director, Milos Supljeglav (ably assisted by Greg Martinovich), has had the primary carriage of the matter for a number of years.

In a unanimous judgment which is likely to reshape the understanding of judicial impartiality in Australian courts, the High Court allowed an appeal from a judgment of the Full Court of the Family Court of Australia dismissing an appeal from the Family Court of Western Australia on the ground of apprehended bias.

The Court ruled that multiple occasions of undisclosed private communications between a Trial Judge and the Respondent’s Barrister gave rise to the apprehension of bias.

The Court also found it “particularly troubling” and “difficult to comprehend” that the judge failed to disclose these private communications.

“[18] … The apprehension of bias principle is so important to perceptions of independence and impartiality “that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined” (emphasis added). No prediction by the court is involved in deciding whether a judge might not bring an impartial mind to bear. No question as to the understanding or motivation of the particular judge arises.

“[21] … The alignment of the fair-minded lay observer with the judiciary and the legal profession is inconsistent with the apprehension of bias principle and its operation and purpose. The hypothetical observer is a standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system. The hypothetical observer is not conceived of as a lawyer but a member of the public served by the courts. It would defy logic and render nugatory the principle to imbue the hypothetical observer with professional self-appreciation of this kind.”

Please refer to the High Court’s Judgment for further details about Charisteas v Charisteas and this latest judgment.