Dowling & Molloy - [2007] FamCA 68

FAMILY COURT OF AUSTRALIA

DOWLING & MOLLOY

[2007] FamCA 68

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – WITH WHOM A CHILD LIVES – Allegations of judicial bias – Conduct of the trial by the parties’ own lawyers - Appeal dismissed.

FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE – Admissibility of evidence in children’s cases - Material sought to be adduced did not meet the requirements espoused by CDJ v VAJ (1998) 197 CLR 172– Court proposed to admit the evidence as the application was not challenged by the respondent or the Independent Children’s Lawyer – Application allowed.

Commonwealth Evidence Act
Family Law Act 1975 (Cth)

Allesch and Maunsz (2000) 26 Fam LR at 237
Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621
Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343
CDJ & VAJ (1998) 197 CLR 172
Clifton v Stuart (1991) FLC 92-194
Fox v Percy [2003] HCA 22
G & G [2004] FamCA 1179
Gronow & Gronow (1979) 144 CLR 513
Johnson v Johnson (3) 2000 FLC 93-041
Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712
OP & TP & The Child Representative (Conduct of Counsel) (2003) Fam LR 281
Vakauta and Kelly (1989) 167 CLR 568

APPELLANT:

DOWLING

RESPONDENT:

MOLLOY

FILE NUMBER:

NCF

1008

1995

APPEAL NUMBER:

2005

DATE DELIVERED:

16 February 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

KAY, WARNICK & MAY JJ

HEARING DATE:

12 September 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2005

LOWER COURT MNC:

[2005] FamCA 539

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appellant appeared on his own behalf

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Valerie Marjkus Solicitor

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Sundstrom

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Thomas Mitchell Partners

Orders

That the appeal be dismissed.
That there be no order as to costs.

FAMILY COURT OF AUSTRALIA AT

Appeal Number: EA 82 of 2005
File Number: NCF 1008 of 1995

DOWLING

Appellant

And

MOLLOY

Respondent

REASONS FOR JUDGMENT

In an amended Notice of Appeal filed 26 October 2005 the father, Mr Dowling, appealed against all of the orders made by Steele J on 29 June 2005. In essence those orders provided that the child, born 13 September 1991 reside with the mother, Ms Molloy, who is also to have sole parental responsibility. Orders were made in relation to contact by the father sending letters and gifts to the child to a post box and that the mother be at liberty to read such letters first before providing them to the child. The mother was ordered to provide the father with a copy of the school reports.

Grounds

The Notice of Appeal contains a number of grounds which can be described as follows:
(1)A denial of procedural fairness including an allegation that the Judge was biased towards the mother’s case and displayed a hostile attitude towards the father. This…

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

AGLC: Dowling & Molloy [2007] FamCA 68
Case: [2007] FamCA 68
Decision Date: 16 February 2007

CaseChat Overview and Summary

The appeal concerned decisions made by a Family Court judge regarding children. The primary dispute involved allegations of judicial bias and the conduct of the trial by the parties' legal representatives. The appeal was brought before Kay, Warnick, and May JJ.

The court was required to determine whether the trial judge's decision concerning the children was plainly wrong, necessitating appellate intervention. Additionally, the court considered an application to adduce further evidence, assessing its admissibility in children's cases, particularly in light of the principles established in *CDJ v VAJ*.

The court reiterated well-established principles regarding appeals from discretionary judgments, emphasising the significant width of discretion afforded to trial courts and the caution appellate courts must exercise. Citing *Bellenden*, *Norbis v Norbis*, *Australian Coal & Shale Employees Federation v The Commonwealth*, *Gronow & Gronow*, and *CDJ & VAJ*, the judges stressed that an appellate court should only interfere if a decision is plainly wrong or exceeds the generous ambit of reasonable disagreement. The court noted that trial judges often have an advantage over appellate courts due to their direct observation of witnesses and their opportunity to reflect on the entirety of the evidence. Regarding the application to adduce further evidence, the court allowed it, noting that the material sought to be adduced did not meet the requirements of *CDJ v VAJ*, but the application was not challenged by the respondent or the Independent Children’s Lawyer.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The statements of principle applicable to appeals from discretionary judgments are well known. In the judgment of Warnick J in G & G [2004] FamCA 1179, it was said:“82. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)83.In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)84.Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”85.In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:“…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”86.Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:“1.…The reference to ‘plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.2.Such reasons for appellate restraint…have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficulty and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.” (emphasis added)…89.Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.90.In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.91.In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis added)

Ratio Decidendi

Legal Principle Established

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