AGF & LLS - [2005] FamCA 13

[2005] FamCA 13

JFFITZGE

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY VIA VIDEO LINK WITH BRISBANE

Appeal No. NA 47L of 2004
File No. BR 5353 of 2003

IN THE MATTER OF:

AGF

Appellant/Father

- and -

LLS

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  Bryant CJ, Kay and Coleman JJ
DATE OF HEARING:        14^th day of September 2004
DATE OF JUDGMENT:     21^st day of January 2005

APPEARANCES: The appellant father appeared on his own behalf.

Mr Nolan of Senior Counsel with Ms Martin of Counsel (instructed by Andersons Solicitors, PO Box 84, Acacia Ridge QLD 4110), appeared on behalf of the respondent mother.

Name of Appeal AGF v LLS

Appeal Number NA 47L of 2004

Date of Appeal hearing 14^th day of September 2004

Date of Judgment 21^st day of January 2005

Coram Bryant CJ, Kay and Coleman JJ

Catchwords: Application for Leave to Appeal and/or appeal against trial Judge’s refusal to disqualify himself from hearing contempt charges which he caused to be brought against a party to proceedings before him.
Leave to Appeal not required – to the extent that leave may be required, Leave to Appeal granted - Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and Rutherford v Rutherford (1991) FLC 92-255 followed.
Held that “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind” to the issue for determination - Johnson v Johnson [2000] HCA 48 (7 September 2000) followed.
Found that the circumstances of the case did not come within an exception to the rules of natural justice, therefore not open to the trial Judge to refuse to disqualify himself. Circumstances in which a Judge may hear and determine contempt proceedings initiated by the Judge discussed.

Appeal Dismissed

No order as to costs
Reportable

This is an Application by AGF (“the husband”) filed 12 August 2004 for Leave to Appeal against the refusal of Barry J to disqualify himself from the hearing of two charges of Contempt of Court brought against the husband by his Honour on 30 July 2004.
Although formally resisting the appeal, and making submissions in support of such resistance, in oral submissions during the hearing of the appeal, learned Senior Counsel for LLS (“the wife”) indicated that the fate of the appeal was ultimately a matter for the Court in light of the view the Court took of the reasonable apprehension or otherwise of impartiality on the part of the trial Judge.

BACKGROUND

On 15 July 2004 Barry J made a series of orders in proceedings between the parties with respect to interim residence and other matters in relation to the child of the parties, LMF who was born on 18 December 1995. Other injunctive orders were also made. Relevantly for present purposes his Honour ordered:-
“(15)That all parties be at liberty to lodge written submissions for a re-consideration of the Orders made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AGF & LLS

Details

AGLC: AGF & LLS [2005] FamCA 13
Case: [2005] FamCA 13
Decision Date: 21 January 2005

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal concerning a dispute between AGF and LLS. The precise nature of the dispute is not detailed in the provided text, but it involved a matter brought before the Full Court for determination.

The central legal issues before the Full Court likely revolved around the interpretation and application of relevant legal principles pertinent to the dispute between AGF and LLS. Without further detail on the underlying cause of action, the specific legal questions remain unstated.

The judgment of Bryant CJ, Kay and Coleman JJ would have addressed the arguments presented by the parties and applied established legal principles to reach their decision. The reasoning would have been based on the evidence and submissions before the Court, aiming to resolve the legal questions in accordance with Australian law.

The final orders or outcome of the appeal are not provided in the given text.

Orders