Fennessy & Sanchez - [2007] FamCA 506

FAMILY COURT OF AUSTRALIA

FENNESSY & SANCHEZ

[2007] FamCA 506

FAMILY LAW – APPEAL - APPEAL FROM FAMILY COURT OF AUSTRALIA -
Appeal against refusal of father’s applications that the judge be disqualified from hearing the substantive proceedings and that he grant an interlocutory order that regarding contact with a child.

FAMILY LAW - APPEAL – EXERCISE OF DISCRETION – INTERLOCUTORY PARENTING ORDER – Assertion that the trial Judge erred in failing to consider and apply the principles of Goode and Goode (2006) FLC 93-286 not established. Part VII Family Law Act 1975 discussed. Court not satisfied trial Judge was in the circumstances obliged to refer in his reasons for judgment to matters discussed in Goode. Trial Judge's reasons for judgment adequate and course of reasoning thereby revealed not found to constitute appealable error. If trial Judge did err either in relation to Goode factors, or as to adequacy of reasons or exercise of discretion, Full Court not able to re-exercise discretion, and remitter for re-hearing of interim application inappropriate where judgment in substantive proceedings reserved.

FAMILY LAW - APPEAL – DELAY – Assertion that the trial Judge ought to have disqualified himself from hearing the substantive proceedings as a result of the implications of delay not established. R v Maxwell (1998) 217 ALR 452 adopted with regard to delay. No evidence that the trial Judge has ever said or done anything which may give rise to a reasonable apprehension of a lack of impartiality.

FAMILY LAW - APPEAL – PREJUDICE – Not established that the trial Judge should have disqualified himself from hearing the substantive proceedings for other reasons including, inter alia, prejudice of relevant and live trial issues, impartiality, actual bias, contempt of his own orders and of the Court, corruption of the Court process, denying the best interests of the child and denial of procedural justice.

The Family Law Act 1975 (Cth),Part VII, s 94(2)

R v Maxwell (1998) 217 ALR 452
Goode and Goode (2006) FLC 93-286

APPELLANT:

MR FENNESSY

RESPONDENT:

MS SANCHEZ

INDEPENDENT CHILDREN’S LAWYER:

Peter Williams

INTERVENER:

Director-General, Department of Child Safety

FILE NUMBER:

BRF

5353

2003

APPEAL NUMBER:

2007

DATE DELIVERED:

1 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Coleman, Boland and Stevenson JJ

HEARING DATE:

18 May 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 March 2007

LOWER COURT MNC:

[2007] FamCA 261

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Fennessy, in person

COUNSEL FOR THE RESPONDENT:

Mr Canning

SOLICITOR FOR THE RESPONDENT:

Andersons Solicitors

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Linklater-Steele

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Williams Lawyers

COUNSEL FOR THE INTERVENER:

Mr Parrott

SOLICITOR FOR THE INTERVENER:

Crown Law

Orders

That the appeal be dismissed.
That the appellant pay the costs of and incidental to the appeal of the Respondent, the Intervener and the Independent Children’s Lawyer as agreed and failing agreement as assessed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day…

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 Fennessy & Sanchez

Details

AGLC: Fennessy & Sanchez [2007] FamCA 506
Case: [2007] FamCA 506
Decision Date: 1 June 2007

CaseChat Overview and Summary

The appeal concerned a father's applications to the Family Court of Australia for the disqualification of the trial judge and for an interlocutory order regarding contact with a child. The Full Court of the Family Court of Australia heard the appeal.

The legal issues before the Full Court were whether the trial judge erred in refusing to disqualify himself from hearing the substantive proceedings, and whether the trial judge erred in refusing to grant an interlocutory order concerning contact with the child. Specifically, the father asserted that the trial judge failed to consider and apply the principles from *Goode and Goode* (2006) FLC 93-286, that the judge's reasons for judgment were inadequate, and that the judge's exercise of discretion was flawed. The father also contended that the trial judge should have disqualified himself due to the implications of delay, and for other reasons including alleged prejudice, lack of impartiality, actual bias, contempt of court orders, corruption of the court process, denial of the child's best interests, and denial of procedural justice.

The Full Court found that the assertion that the trial judge erred in failing to consider and apply the principles of *Goode and Goode* was not established. The Court was not satisfied that the trial judge was obliged in the circumstances to refer to the matters discussed in *Goode* in his reasons, finding the judge's reasons adequate and his course of reasoning not to constitute appealable error. The Court also held that the assertion that the trial judge ought to have disqualified himself due to the implications of delay was not established, adopting the principles from *R v Maxwell* (1998) 217 ALR 452 and finding no evidence of anything said or done by the judge that could give rise to a reasonable apprehension of a lack of impartiality. Furthermore, the Court found that it was not established that the trial judge should have disqualified himself for other alleged reasons, including prejudice, impartiality, bias, contempt, corruption, or denial of the child's best interests or procedural justice. The Full Court concluded that even if the trial judge had erred in relation to *Goode* factors, the adequacy of reasons, or the exercise of discretion, it was not able to re-exercise the discretion, and a remitter for a re-hearing of the interim application was inappropriate given that judgment in the substantive proceedings had been reserved.

The appeal was dismissed, and the appellant was ordered to pay the costs of the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That the appellant pay the costs of and incidental to the appeal of the Respondent, the Intervener and the Independent Children’s Lawyer as agreed and failing agreement as assessed.

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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