This post is my attempt to digest the Charisteas decision, summarised briefly below. My understanding is that it is very rare for a judicial officer to be found to have bias. This issue is of particular interest to me as a matter I have had some involvement with against a self-represented litigant, has raised these issues. An application for recusal on account of bias was made.
This paragraph will set out the general authorities for bias, which applies to all cases irrespective of subject matter. The next section of this post will deal with Family Law bias cases.
The “relevant legal principles” were recently summarised by the New South Wales Court of Appeal in Crossman v Sheahan  NSWCA 200. Relevantly, Basten JA said :
21. The test for disqualification on the basis of a reasonable apprehension of bias is not entirely easy to apply. It contains three discrete elements, which are interrelated. Thus, in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ stated:
6. … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle. …
8. The apprehension of bias principle admits of the possibility of human frailty…. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. … Only then can the reasonableness of the asserted apprehension of bias be assessed.
22. The three elements are (a) what the fair-minded observer might apprehend, (b) whether the judge might not be impartial and (c) the reasonableness of the apprehension. The third element, dealing with the reasonableness of the apprehension, requires a “logical connection” between the matter relied on as an indicator of pre-judgment and the feared deviation from impartial determination of the case before the court. It imposes a constraint on what might otherwise be a low (in the sense of undemanding) standard for disqualification. On one view, the third element requires a degree of clear thinking on the part of the hypothetical “fair minded lay observer”; on another view, the logical connection must be established to the satisfaction of the reviewing court, or the judge dealing with a recusal application. That is, on the latter view the test involves an objective assessment of the reasonableness of the apprehension, rather than determining whether the fair-minded lay observer “might” perceive a logical connection.
23. It is the latter approach which the High Court undertook in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 …
25. In order to consider whether there is a logical connection between the opinion said to give rise to prejudgment and the proceedings to be determined, it is necessary to identify the issues in the proceedings. That exercise is not necessarily straightforward. Where the question is raised before the commencement of the proceedings, it would usually be appropriate to have regard to the pleadings in a civil matter. However, the issues in dispute may be refined (or even expanded) in the course of proceedings. It would be inappropriate to take a narrow or over-refined view of the issues as pleaded.
Johnson v Johnson(2000) 201 CLR 488 (“Johnson“) and Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner“). The passages are lengthy, but it is helpful to reproduce them (with footnotes omitted):
61. The principles which apply in respect of disqualification for actual or apprehended bias are clearly explained in two decisions of the High Court – Johnson and Ebner. In the former case the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) set out the principles relevant to apprehended bias at 492-493 as follows:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is 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.
12. That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly(1989) 167 CLR 568, Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them. (footnotes omitted)
62. The test to be applied was further expanded by the High Court in Ebner where the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said at 348:
The principle to be applied
19. Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
20. This is not to say that it is improper for a judge to decline to sit unless the judge has affirmatively concluded that he or she is disqualified. In a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification. However, if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
21. It is not possible to state in a categorical form the circumstances in which a judge, although personally convinced that he or she is not disqualified, may properly decline to sit. Circumstances vary, and may include such factors as the stage at which an objection is raised, the practical possibility of arranging for another judge to hear the case, and the public or constitutional role of the court before which the proceedings are being conducted. These problems usually arise in a context in which a judge has no particular personal desire to hear a case. If a judge were anxious to sit in a particular case, and took pains to arrange that he or she would do so, questions of actual bias may arise.
22. The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
23. Bias, whether actual or apprehended, connotes the absence of impartiality. It may not be an adequate term to cover all cases of the absence of independence. (emphasis added)
Family Law bias cases
Apprehended bias : Batey-Elton & Elton  FamCAFC 79
Strahan & Strahan (Disqualification) (2009) FLC 93-414 (“Strahan“) the Full Court (May, Boland and Thackray JJ) at paragraph 5 of their reasons referred to these two decisions as follows:
It will be noted that the plurality in Johnson considered it unnecessary to undertake a detailed analysis of the principles relating to apprehended bias, preferring to rely on the test of “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.” The plurality in Ebner articulated a two step process to be used in applying that test in individual cases. The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
At  of Charisteas, Walters J states:
23 As explained in Ebner and Strahan, the Court must take certain steps in considering an application of this nature:
The first step is the identification of the matters said to give rise to the apprehended bias. The second step requires consideration of the “logical connection” between the matters identified and the possibility, real not remote, of a deviation from the course of deciding the case on its merits.
 I reiterate that the test for apprehended bias is 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. “The question the judge is required to decide”, therefore, becomes an important matter.
25 As submitted in the recusal submissions at  to , further considerations are also relevant. For example:
a) the fair minded lay observer –
i) is reasonable;
ii) is not unduly sensitive or suspicious, but fair-minded and informed;
iii) is willing and able to consider “the whole circumstances”; and
iv) understands that a judicial officer’s training equips him or her to discard irrelevancies;
b) the test for apprehended bias is an objective test of possibility (as distinct from probability), but the possibility must be real and not remote;
c) the judicial officer should avoid any tendency to be over-ready to disqualify himself or herself from presiding over an appointed trial; and
d) the case for disqualification must be “firmly established”.