Arndale v Kingley - [2012] HCASL 16

ARNDALE
v
KINGLEY & ANOR
[2012] HCASL 16
B35/2011

In parenting proceedings relating to the parties' daughter the Family Court of Australia appointed an Independent Children's Lawyer. A Child and Parents Issues Assessment and, later, a Family Report were prepared by a Family Consultant employed by the Court.
The judge of the Family Court in whose docket the matter was listed transferred the management and trial of the proceeding to another judge of that Court (O'Reilly J). It later emerged that this was done because the judge in whose docket the matter had originally been listed had discussed the case with the Family Consultant without the parties being present.
The applicant, the mother of the child, applied to O'Reilly J for orders removing the reports prepared by the Family Consultant from the court file and recovering all copies of them, appointing an expert to prepare a Family Report, and discharging the Independent Children's Lawyer and appointing another lawyer as Independent Children's Lawyer. O'Reilly J ordered that the reports made by the Family Consultant (and material annexing or referring to them) be sealed, retained on the court file and not opened except by order of a judge. Her Honour further ordered that the reports not be introduced in evidence or used for any purpose in the proceedings nor relied upon by any party, witness or the Independent Children's Lawyer. Her Honour ordered that the Court's Manager Child Dispute Services appoint a new Family Consultant but refused to order that the Independent Children's Lawyer be discharged.
The mother appealed to the Full Court of the Family Court of Australia (May, Strickland and Ainslie‑Wallace JJ) but that Court dismissed the appeal. She now seeks special leave to appeal to this Court alleging that further orders similar to those she had claimed at first instance should have been made.
While ex parte communications by a potential witness with a judge may well require the judge not to hear the proceeding, it is not necessary to decide whether O'Reilly J was right to make orders which would, in effect, prevent evidence being given at trial of the opinions formed by the Family Consultant. On the assumption that those orders were rightly made it is not demonstrated that any further order of the kind now sought should have been made.
An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
9 February 2012 S.M. Crennan

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.

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Details

Case: [2012] HCASL 16
Decision Date

CaseChat Overview and Summary

In the matter of Arndale v Kingley, the parties were involved in parenting proceedings concerning their daughter. The Family Court of Australia appointed an Independent Children's Lawyer and a Family Consultant to assist in the case. A judge of the Family Court transferred the case to another judge after it was discovered that the original judge had discussed the case with the Family Consultant without the parties present. The mother sought orders to remove the reports prepared by the Family Consultant from the court file, appoint a new Family Consultant, discharge the Independent Children's Lawyer and appoint a new lawyer, and prevent the use of the Family Consultant's reports as evidence.

The court had to decide whether the orders made by the judge were appropriate given the circumstances of the case. Specifically, the court had to determine whether the judge was correct in ordering that the Family Consultant's reports be sealed and not used as evidence, and whether any further orders should have been made. The court also had to consider whether the mother's appeal had sufficient prospects of success to warrant special leave to appeal.

The court found that the orders made by the judge were appropriate given the circumstances of the case, and that the mother's appeal did not have sufficient prospects of success to warrant special leave to appeal. The court noted that while ex parte communications by a potential witness with a judge may require the judge not to hear the proceeding, it was not necessary to decide whether the judge was right to make orders which would prevent evidence being given at trial of the opinions formed by the Family Consultant. The court also noted that even if the orders were rightly made, it was not demonstrated that any further order of the kind sought should have been made. As a result, the application for special leave to appeal was dismissed with costs.

Orders