Green & Knowles

Case [2010] FamCAFC 248

FAMILY COURT OF AUSTRALIA

GREEN & KNOWLES [2010] FamCAFC 248

FAMILY LAW - APPEAL – APPREHENDED BIAS – Appeal against refusal of trial Judge to disqualify himself for apprehended bias – Where comments made by trial Judge represented preliminary views – Apprehended bias by the trial Judge not established – No merit in this ground.

FAMILY LAW - APPEAL – PARENTING – Appeal against discretionary judgment – Where trial Judge ordered the mother to have sole parental responsibility for decisions concerning schooling and health – Where orders made were open to the trial Judge in the exercise of discretion – No appealable error established.

FAMILY LAW - APPEAL – COSTS APPEAL – Whether the trial Judge erred in making a costs order against the father – Where the findings of trial Judge were open to him on the evidence – No merit in costs appeal.
AMS & AIF (1999) 199 CLR 160
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Batey-Elton & Elton (2010) 43 Fam LR 6
CDJ v VAJ (1998) FLC 92-828
D & SV (2003) FLC 93-137
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Knowles & Green (Security for Costs) [2010] FamCAFC 31
KPR & MRS [2007] FamCA 1334
Penfold & Penfold (1980) 144 CLR 311
Re F: Litigants in person guidelines (2001) FLC 93-072
Strahan & Strahan (Disqualification) (2009) FLC 93-414
The State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Truman & Truman (2008) 216 FLR 365; (2008) FLC 93-360); (2008) Fam LR 614
Vakauta v Kelly (1989) 167 CLR 568
Family Law Act 1975 (Cth) – ss 60 CA, 60CC, 61 DA, 65 DAA, 65 DAC, 117, Part VII - Division 12A
Family Law Rules 2004 (Cth)
APPELLANT: Mr Green
RESPONDENT: Ms Knowles
INDEDPENDENT CHILDREN’S LAWYER
FILE NUMBER: MLC 1172 of 2007
APPEAL NUMBER: SA
SA 		31
68 		of
of 		2009
2009

DATE DELIVERED:

15 December 2010

PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Bryant CJ, Boland & Thackray JJ
HEARING DATE: 3 May 2010
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 15 April 2009;
25 June 2009
LOWER COURT MNC: [2009] FamCA 271; [2009] FamCA 541

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Green appeared in person
ADVOCATE FOR THE RESPONDENT: Ms Knowles appeared in person

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER

 Macgregor Barristers and Solicitors

Orders

  1. Appeal No SA 31 of 2009 be dismissed.

  2. Appeal No SA 68 of 2009 be dismissed.

  3. Each party pay their own costs of and incidental to the appeals.

  4. The Registry Manager of the Melbourne Registry of the Family Court of Australia is directed to forthwith pay the husband the sum of $10,000.00 together with interest earned thereon deposited with the Registry pursuant to the orders of the Full Court made 5 May 2010.   

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AGLC
Green & Knowles [2010] FamCAFC 248
Case
[2010] FamCAFC 248
Decision Date

CaseChat Overview and Summary

The case of Green & Knowles involved an appeal by the father, challenging various orders made by the Family Court of Australia in relation to parenting arrangements for his child. The father appealed against the refusal of the trial judge to disqualify himself on the basis of apprehended bias, against the discretionary parenting orders, and against the costs order made against him. The father argued that the trial judge's comments reflected a bias and that the parenting orders were not in the best interests of the child. Furthermore, the father contended that the trial judge erred in making a costs order against him.

In addressing the appeal, the court examined whether the trial judge's comments indicated a bias that would preclude a fair trial. The court found that the comments were preliminary views and did not establish an apprehended bias. Regarding the parenting orders, the court considered whether the trial judge had erred in exercising his discretion. The court held that the orders were open to the trial judge based on the evidence presented and did not establish an appealable error. Lastly, the court assessed the trial judge's decision to make a costs order against the father, concluding that the findings were open to the trial judge and no error was present.

The court dismissed both appeals, affirming that no grounds for disqualifying the trial judge or for overturning the parenting orders and costs decision were established. Consequently, the court ordered that each party bear their own costs of the appeals. Additionally, the Registry Manager of the Melbourne Registry of the Family Court of Australia was directed to pay the father $10,000 plus interest as per the Full Court's orders dated 5 May 2010.

Orders

Orders of the court

1.

Appeal No SA 31 of 2009 be dismissed.

2.

Appeal No SA 68 of 2009 be dismissed.

3.

Each party pay their own costs of and incidental to the appeals.

4.

The Registry Manager of the Melbourne Registry of the Family Court of Australia is directed to forthwith pay the husband the sum of $10,000.00 together with interest earned thereon deposited with the Registry pursuant to the orders of the Full Court made 5 May 2010.

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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