When Judges return to prac­tice: a clos­er look at the deci­sion in Tan­it & Tanit

In the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia, being a Fed­er­al Court, the com­pul­so­ry retire­ment age of Judges is 70 years of age. If Judges don’t retire before they turn 70 (which many Judges do), they are forced to leave the role at 70 pur­suant to Sec­tion 72 of the Constitution. 

Accord­ing to the Aus­tralian Insti­tute of Health and Wel­fare, in 1977, when that manda­to­ry retire­ment age for Fed­er­al Judges/​Justices (referred to col­lec­tive­ly as ​“Judges” below) was imple­ment­ed, the life expectan­cy of an aver­age man was 69.6 years of age and the life expectan­cy of an aver­age woman was 76.6 years of age. Today, life expectan­cies for men and women are more than 81 years of age.

Accord­ing to the Annu­al Report of the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia (Divi­sion 1) and (Divi­sion 2) tabled before Par­lia­ment on 27 Octo­ber 2025, the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia, across both divi­sions of the Court, there were 101,092 fam­i­ly law appli­ca­tions filed in 12 months. This was a 3% increase from the year before, reflect­ing a steady trend of increas­ing fil­ings which need to be dealt with by approx­i­mate­ly 126 Judges (some of whom do not hear fam­i­ly law mat­ters) with sup­port from Judi­cial Registrars. 

As the amount of fil­ings in the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia grows, the work­load of judi­cial offi­cers and the fam­i­ly law pro­fes­sion increas­es and life expectan­cies extend, there is an inter­est­ing and increas­ing­ly rel­e­vant phe­nom­e­non being encoun­tered in fam­i­ly law lit­i­ga­tion. What hap­pens when a Judge retires but decides to go back to work as a solic­i­tor or bar­ris­ter and returns to appear­ing in the very Court in which they once sat as a Judge? 

That ques­tion was the sub­ject of a recent deci­sion by Brasch J in Divi­sion 1 of the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia, Tan­it & Tan­it [2026] FedCFamC1F 171. 

In that mat­ter, a for­mer Judge from the Fam­i­ly Court of Aus­tralia (which is now known as Divi­sion 1 of the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia) appeared before Her Hon­our. That for­mer Judge had returned to act­ing as Senior Coun­sel, hav­ing retired from the Court in 2021. 

Her Hon­our raised with Senior Coun­sel, who act­ed for the Hus­band, and coun­sel for the Wife, the pos­si­bil­i­ty of bias being appre­hend­ed as a result of Senior Coun­sel’s for­mer sta­tus as a Judge. In rais­ing this con­cern, Her Hon­our not­ed the following: 

• Senior Coun­sel had ​“sat out” the 5 years rec­om­mend­ed by the Bar Asso­ci­a­tion of Queens­land Bar­ris­ters’ Con­duct Rules (“Bar Rules”) since he retired in 2021 but her view was that ​“the prop­er admin­is­tra­tion of jus­tice must tri­umph over time out peri­ods expressed in Bar Rules” and stat­ed that accord­ing to Aus­tralasian Insti­tute of Judi­cial Admin­is­tra­tion, such time­lines were ​“min­i­mum stan­dards only”.
• She had read the 2018 arti­cle ​‘The Grow­ing Imper­a­tive to Reform Eth­i­cal Reg­u­la­tion of For­mer Judges’ by Gabrielle Apple­by and Alysia Black­ham pub­lished in the Inter­na­tion­al and Com­par­a­tive Law Quar­ter­ly. Although Her Hon­our not­ed she was not bound by the arti­cle, the arti­cle is focused on the min­i­mal, if not non exis­tent, reg­u­la­tions applic­a­ble to for­mer Judges who return to prac­tice and the eth­i­cal prob­lems this pos­es for the pro­fes­sion, includ­ing the ero­sion of pub­lic con­fi­dence in a judi­cial sys­tem that may appear to be biased for, or against, for­mer Judges. 
• Her Hon­our accept­ed that the Wife did not object to the Hus­band hav­ing a for­mer Judge as his Senior Coun­sel, nor did the wife object to Brasch J hear­ing the mat­ter but that was not the end of the mat­ter in her view and lit­i­gants views about Judges, or oth­er aspects of their mat­ter, often change once a tri­al has occurred, and a Judge has imposed a deci­sion on them that they don’t agree with.

Her Hon­our then applied the well-known test, as set out in Ebn­er v Offi­cial Trustee in Bank­rupt­cy (2000) 205 CLR 337, as to whether the fair mind­ed lay observ­er might rea­son­ably appre­hend bias if Brasch J were to hear the mat­ter with a for­mer Judge appear­ing before her. In apply­ing this test, Her Hon­our raised two rea­son­able con­clu­sions that a fair mind­ed observ­er might draw (at [27]): 

1. That ​“the hus­band, for whom the for­mer Jus­tice acts, has, to use the ver­nac­u­lar, ​“the inside run­ning” because of his legal representative’s sta­tus as a for­mer Jus­tice of this Court”; or
2. That ​“the Court [will] favour the wife so as to avoid look­ing like the Court is not favour­ing the for­mer Jus­tice and thus his client…”. 

As Brasch J com­ment­ed, both are rea­son­able appre­hen­sions, and very prob­lem­at­ic per­cep­tions for a per­son to have about the Court. 

As both Brasch J stat­ed in her Judg­ment (at [32]), and as set out by Apple­by and Black­ham in their arti­cle, jus­tice must be both done and seen to be done. 

Hav­ing con­sid­ered the above mat­ters, Brasch J con­clud­ed that the appro­pri­ate course of action was to recuse her­self from hear­ing the mat­ter to avoid the appre­hen­sion of bias. 

Brasch J’s deci­sion, and her rea­sons for that deci­sion, make clear the conun­drum fac­ing the Fed­er­al Cir­cuit and Fam­i­ly Court of Aus­tralia con­cern­ing the appear­ance of for­mer Judges of the Court. 

On one hand, lit­i­gants should absolute­ly be enti­tled to their choice of legal rep­re­sen­ta­tive, and the best legal rep­re­sen­ta­tion pos­si­ble. Good solic­i­tors and coun­sel can ably assist par­ties to set­tle mat­ters with­out judi­cial inter­ven­tion, or assist both par­ties and the Court to run an effec­tive, effi­cient and eth­i­cal tri­al when set­tle­ment is not pos­si­ble. It is not uncom­mon for mem­bers of the pro­fes­sion to have close pro­fes­sion­al or per­son­al rela­tion­ships that do not nec­es­sar­i­ly impact on their abil­i­ty to pro­vide objec­tive advice and sup­port to their clients. It is not in the inter­ests of jus­tice, or the inter­ests of man­ag­ing an already over­bur­dened sys­tem, to lim­it access to legal representatives. 

On the oth­er hand, bias is a com­mon­ly raised issue in fam­i­ly law mat­ters. It is an emo­tion­al, and often hot­ly con­test­ed, juris­dic­tion, where the con­se­quences of deci­sions made by Judges can sig­nif­i­cant­ly impact par­ties’ finances, their access to their chil­dren, and oth­er cru­cial aspects of their lives well into their future. There can be no doubt, as set out by Brasch J, that bias could be per­ceived by lit­i­gants and the pub­lic for Judges who used to make deci­sions in the Court to then appear in that same Court. It is also not in the inter­ests of jus­tice for lit­i­gants, or the gen­er­al pub­lic, to lack con­fi­dence in Judges of the Court because of for­mer Judges return­ing to practice. 

Giv­en that fam­i­ly law is a Fed­er­al Juris­dic­tion that already calls upon Judges in states and ter­ri­to­ries across the coun­try to hear mat­ters, regard­less of loca­tion, per­haps the answer is to ensure that a for­mer Judge from the Bris­bane Reg­istry, for exam­ple, only ever appears before Judges from out­side of Queens­land reg­istries, to lim­it any appre­hen­sion of bias. Per­haps there is an alter­na­tive answer, such as more for­mal reg­u­la­tions or rules, as opposed to guide­lines, being imposed on for­mer Judges, to ensure there is a clear path­way in these types of situations.

What is clear is that we are like­ly to see more Judg­ments, like that of Brasch J in Tan­it, wrestling with this issue into the future and lit­i­gants, prac­ti­tion­ers, and judi­cial offi­cers will all have to deter­mine on a case by case basis the best approach to take when this issue does arise.