Family Court of Australia
Blann & Kenny [2021] FamCAFC 161
Appeal from:
Blann & Kenny [2021] FamCA 322
Appeal number(s):
EAA 61 of 2021
File number(s):
SYC 8232 of 2018
Judgment of:
WATTS, AUSTIN & TREE JJ
Date of judgment:
25 August 2021
Catchwords:
FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Appeal against parenting orders – Allegations of sexual abuse – Where the primary judge did not err in finding the father did not pose an unacceptable risk of harm to the children – Procedural fairness – Where the primary judge was not obliged to re-list the proceedings to inform the mother of a conclusion which defeated her expectations at trial – Where there is no principle of law that obliged the primary judge to finally dispose of the proceedings – Appeal dismissed – No order as to costs.
Legislation:
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 64B(2), 65D(2), 69ZR, 69ZQ(1), 94AA(1)
Family Law Rules 2004 (Cth) r 22.09(1)
Family Law Regulations 1984 (Cth) reg 15A
Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Deiter & Deiter [2011] FamCAFC 82
Faulkes & Tomkins (2018) FLC 93-854; [2018] FamCAFC 151
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
M v M (1988) 166 CLR 69; [1988] HCA 68
Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Reid & Lynch (2010) FLC 93-448; [2010] FamCAFC 184
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stott & Holgar and Anor [2017] FamCAFC 152
Division:
Appeal Division
Number of paragraphs:
110
Date of hearing:
30 July 2021
Place:
Heard in Sydney (via video-link), delivered in Newcastle
Counsel for the Appellant:
Mr Coleman SC with Ms Bartley
Solicitor for the Appellant:
Uther Webster & Evans Solicitors
The Respondent:
Litigant in person
Counsel for the Independent Children's Lawyer:
Ms Rebehy
Solicitor for the Independent Children's Lawyer:
Shedden & Associates
ORDERS
EAA 61 of 2021
SYC 8232 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS BLANN
Appellant
AND:
MR KENNY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WATTS,…
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- AGLC
- Blann & Kenny [2021] FamCAFC 161
- Case
- [2021] FamCAFC 161
- Decision Date
CaseChat Overview and Summary
The legal issues central to the appeal were whether the primary judge erred in finding that the father did not pose an unacceptable risk of harm to the children, and whether the primary judge was procedurally fair in not re-listing the proceedings to inform the mother of a conclusion which defeated her expectations at trial. Additionally, the court considered whether there was a principle of law that obliged the primary judge to finally dispose of the proceedings.
The court held that the primary judge did not err in finding that the father did not pose an unacceptable risk of harm to the children. The court found no basis to conclude that the primary judge was required to re-list the proceedings to inform the mother of a conclusion that defeated her expectations at trial. Furthermore, the court held that there is no principle of law that obliged the primary judge to finally dispose of the proceedings. Therefore, the appeal was dismissed, and no order was made as to costs.
Orders
Orders of the court
EAA 61 of 2021
SYC 8232 of 2018
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:
MS BLANN
Appellant
AND:
MR KENNY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WATTS, AUSTIN & TREE JJ
DATE OF ORDER:
25 August 2021
THE COURT ORDERS THAT:
1. The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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