Danilov & Wynn (No 2) - [2023] FedCFamC1F 252

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Danilov & Wynn (No 2) [2023] FedCFamC1F 252

File number(s): BRC 15350 of 2019

Judgment of: HOWARD J

Date of judgment: 8 March 2023

Catchwords: FAMILY LAW – PARENTING – Application for recusal - Application for contempt against the mother – Application for contempt against the Independent Children's Lawyer – Application for an adjournment

Legislation:
Corporations Act 2001 (Cth) s 198G

Family Law Act 1975 (Cth) Part VII, Part VIIIAA, Part XIIIB, ss 112AP, 112AP(1)(a), 112AP(4)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.28, 2.35, 2.36, 7.13(3)(e), 11.71, 11.71(6), 11.71(7), Division 2.6.2, Table 2.2

Cases cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Ebner v Official Trustee in Bankruptcy & Ors (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

May v O'Sullivan (1955) 92 CLR 654

Wilson v Kuhl [1979] VR 315

Division: Division 1 First Instance

Number of paragraphs: 63

Date of hearing: 7 – 8 March 2023

Place: Brisbane

Counsel for the Applicant: Mr Blaxland

Solicitor for the Applicant: Q Lawyers

The Respondent Litigant in person

Counsel for the Independent Children's Lawyer: Ms Hellewell

Solicitor for the Independent Children's Lawyer: Smithson Lawyers Gold Coast

Table of Corrections

15 May 2023 In paragraph 46, the word ‘would’ has been corrected to ‘could’.
ORDERS

BRC 15350 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DANILOV

Applicant

AND:
MR WYNN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HOWARD J

DATE OF ORDER:

8 MARCH 2023

THE COURT ORDERS:
1.That the respondent father’s application filed 28 February 2023 and amended 7 March 2023 seeking the recusal of the Honourable Justice Howard is dismissed.
2.That the respondent’s application for contempt against the applicant filed 28 February 2023 is dismissed.
3.That the respondent pay the mother’s assessed costs in relation to the application for contempt filed 28 February 2023.
4.That the respondent father’s oral application on 8 March 2023 for leave to file an application for contempt against the applicant mother is dismissed.
5.That the respondent father’s application for contempt against the Independent Children’s Lawyer filed 6 March 2023 is dismissed.
6.That the respondent father’s oral application on 8 March 2023 for leave to file an application for contempt against the Independent Children’s Lawyer is dismissed.
7.That the respondent father’s application filed 28 February 2023 and amended 7 March 2023 to adjourn the proceedings is dismissed.
8.That the respondent father’s application for leave to proceed with an application filed 28 February 2023 and amended 7 March 2023 for the removal of the Independent Children’s Lawyer is dismissed.
9.Costs (other than those outlined in Order 3) are reserved.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules…

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 Danilov & Wynn (No 2)

Details

AGLC: Danilov & Wynn (No 2) [2023] FedCFamC1F 252
Case: [2023] FedCFamC1F 252
Decision Date

CaseChat Overview and Summary

The case before the Federal Circuit and Family Court of Australia involves parenting proceedings between Ms Danilov (the mother) and Mr Wynn (the father). The matter has been ongoing since the mother commenced proceedings in December 2019. The Court had previously ordered that no further applications could be filed without the leave of the Court. Despite this order, the father filed an application on 28 February 2023, seeking various orders, including recusal of the judge, and applications for contempt against both the mother and the Independent Children's Lawyer (ICL). The Court heard the father's application for recusal and dismissed it, finding that there was no apprehended bias on the part of the judge. The Court also dismissed the father's applications for contempt against the mother and the ICL, finding that the applications were flawed and did not establish a prima facie case. Furthermore, the Court dismissed the father's applications for leave to file further contempt applications, as well as his application for an adjournment of the trial and his application for leave to proceed with an application for the removal of the ICL.

The Court found that the father's complaints were either misconceived or did not establish a logical connection to any apprehended bias or deviation from impartial decision-making. The Court held that it was not in dereliction of their duty to draw the attention of the parties to relevant legislation, such as the Corporations Act, and that the father's complaints about the judge's case management did not warrant recusal. The Court also found that the father's contempt applications were flawed, as they did not comply with the required procedures, and that there was no evidence to support the allegations of contempt against the mother and the ICL. Finally, the Court held that the father's applications for adjournment and removal of the ICL were not supported by sufficient evidence and would not be in the best interests of the children or serve the interests of justice. The Court ordered that the father pay the mother's assessed costs in relation to the application for contempt filed on 28 February 2023.

Orders