ACRES & CANNON (NO2)

[2016] FamCA 256

FAMILY COURT OF AUSTRALIA

ACRES & CANNON (NO2) [2016] FamCA 256

FAMILY LAW – PRACTICE AND PROCEDURE – Application seeking leave to commence parenting proceedings under s 102QG of the Family Law Act 1975 (Cth) – Application adjourned to a fixed date

FAMILY LAW – DISQUALIFICATION – Where applicant made an oral application that presiding judge recuse himself from hearing the application to reopen parenting proceedings - Where applicant alleges apprehended bias because judge had made adverse findings of credit in previous substantive proceedings – Application granted

Family Law Act 1975 (Cth)

APPLICANT: Mr Acres

RESPONDENT: Ms Cannon

INDEPENDENT CHILDREN’S LAWYER: Mr A FitzGerald

FILE NUMBER: HBC 155 of 2009

DATE DELIVERED: 2 March 2016

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Munro

SOLICITOR FOR THE APPLICANT: John Munro & Associates

COUNSEL FOR THE RESPONDENT: Ms M A Ryan

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr A FitzGerald

FitzGerald & Browne

Orders

1. The application pursuant to s 102QG of the Family Law Act 1975 (Cth) be adjourned for hearing before a Judge of the Family Court at 4.00pm on 30 August 2016.

IT IS REQUESTED

1. A short report be prepared by a family consultant as to the views of the S born … 2001 (‘the child’) in terms of whether she wishes the contact sought by the father in his application envisaged in this proceeding or not, noting always that should the child decline to be interviewed, that is a matter for the child.

2. The interests, in these proceedings, of the child, be independently represented by a lawyer, presumably Mr Anthony FitzGerald, to represent the interests of the child and perhaps consider on the recommendation of Mr FitzGerald as to whether it should be an adversarial representative rather than an interest representative given the age of the child.

3. It is requested that Legal Aid Commission Tasmania arrange an Independent Children’s Lawyer, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Hobart.

4. Forthwith upon appointment by the said Legal Aid Commission of Tasmania or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

5. Within forty eight (48) hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

6. Costs of the parties be reserved.

IT IS DIRECTED

1. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules (Cth) 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Acres & Cannon (No. 2) (leave to commence proceedings) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 155 of 2009

MR ACRES

Applicant

And

MS CANNON

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

(it is implicit that these reasons include the exchanges between the bench and parties during this interlocutory application)

1. Mr Acres is a subject of an order under s 102QE of the Family Law Act 1975 (Cth) (‘the Act’) which provides that he requires leave to commence any proceedings under the Act in this or any other court in relation orders involving the respondent mother, Ms Cannon, and the parties’ daughter, Ilsa.

2. In late 2015, Mr Acres filed an application for leave to institute a proceeding pursuant to s 102QE of the Act for orders relating to communication with Ilsa. That application was considered by me in Chambers and was not dismissed. In January 2016 directions were made by me in Chambers to enable the leave application to be argued, notice to be given and for documents be served on the respondent mother and Independent Children's Lawyer. Reasons were provided.

3. There was some indication from or on behalf of Mr Acres that an application for disqualification may be made.  As far as I am aware, no formal application in a case in that regard was made until this afternoon when an oral application to that end was made.  Neither the Independent Children’s Lawyer for the child nor counsel for the respondent mother was formally informed of that application until it came before me today.

4. Mr Munro, the solicitor for Mr Acres, submitted that I should disqualify myself given a number of adverse findings of credit I made in relation to Mr Acres in the judgment delivered on 6 March 2014.  In his submissions, Mr Munro highlighted some of those findings.  On balance, I am satisfied that the objective observer is likely to form a view that there could be a perception of bias in those circumstances and as such I will not hear this leave application. 

5. The leave application will need another judge of this Court to hear and determine it, and I note that I am the only Family Court judge based in Tasmania at the present time. I have made inquiries, and there will be another judge of the Family Court in Hobart later this year. Accordingly, I will adjourn the proceedings for the hearing of the leave application under s 102QG of the Act before that judge, and that will be on 30 August 2016 at 4.00 pm.

6. In the meantime, I will make a direction that the child sees a Family Consultant. Such Family Consultant shall do so and then provide a report as to the views of the child in respect of the leave application in the light of the substantive, albeit narrow, application. This will enable the judge who hears the leave application to have information before him or her to enable the matter to be considered, in the light of the child’s views. Particularly having regard to s 102QG(4) of the Act in terms of whether the proceeding (having regard to the child’s views), could amount to a vexatious proceedings or not. I propose to adopt that course and make those orders.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 2 March 2016.

Associate:     

Date:              2 March 2016