HAYKAL & KRAWIEC - [2014] FamCA 1095

FAMILY COURT OF AUSTRALIA

HAYKAL & KRAWIEC

[2014] FamCA 1095

FAMILY LAW – PRACTICE AND PROCEDURE – Disqualification of judicial officer – Where the father submits apprehended bias – Where there is a long and complex history of litigation between the parties – Where the test is an objective one – Where the mother and the ICL submit that there is no valid basis for disqualification – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Discharge of Independent Children’s Lawyer (“ICL”) – Where the father seeks an order to discharge the Independent Child Lawyer – Where it is the second time the father has made an application to have an ICL discharged – Where the mother and the ICL oppose the application – Where the father did not establish that the ICL had not acted with impartiality – Where there was no merit in the father’s application – Application dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Stay of order made for the preparation of a family report – Where the father seeks a stay of the order for preparation of a family report – Where the fundamental principle is the best interests of the child – Where the mother and the ICL oppose the application – Where it is not in the best interests of the child to stay the preparation of the family report – Application dismissed.

Family Law Act 1975 (Cth) – s 68LA

Clemett & Clemett (1981) FLC 91-013
Ebner & Official Trustee in Bankruptcy (2000) 205 CLR 337
T & L (2000) FLC 93-056
W & M and Anor [2006] FamCA 512

APPLICANT:

Mr Haykal

RESPONDENT:

Ms Krawiec

INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes

FILE NUMBER:

SYC

731

2009

DATE DELIVERED:

25 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

25 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Haykal in person

SOLICITOR FOR THE RESPONDENT:

Ms Camilleri of Michael Conley Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KD Holmes

Orders

That the father’s application that Johnston J be disqualified from further hearing applications in these proceedings is dismissed.
That all parties are given leave to inspect all documents produced on subpoena by the New South Wales Police and School 2.
That the father’s application for an order to discharge Mr Duncan Holmes as Independent Children’s Lawyer is dismissed.
That the Court notes that the father has appealed against the order made on 11 June 2014 for preparation of a family report.
That the Court understands that the father would propose to have a similar report prepared by a psychologist of his choosing.
That the father’s application for a stay of the orders of 11 June 2014 relating to preparation of a family report is dismissed.
That the interim parenting proceedings are adjourned to 10:00 am on 15 August 2014.
That the Court notes that the Court has written submissions on behalf of the mother and a note of the material to be relied on by her.
That…

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: HAYKAL & KRAWIEC [2014] FamCA 1095
Case: [2014] FamCA 1095
Decision Date: 25 July 2014

CaseChat Overview and Summary

This matter came before Johnston J in the Family Court of Australia concerning interim parenting proceedings. The father had made several applications, including for the disqualification of Johnston J from further hearing the applications, for the discharge of the Independent Children’s Lawyer, and for a stay of orders relating to the preparation of a family report. The mother had also filed written submissions and a note of material to be relied upon.

The primary legal issues before the Court were whether to grant the father's applications for Johnston J's disqualification and for the discharge of the Independent Children’s Lawyer, and whether to grant a stay of the orders for the preparation of a family report. The Court also considered applications for leave to inspect documents produced on subpoena and for the issuance of further subpoenas.

Johnston J dismissed the father's application for disqualification, finding no basis for such an order. Similarly, the application to discharge the Independent Children’s Lawyer was dismissed. The father's application for a stay of the orders concerning the family report was also dismissed, with the Court noting the father's appeal against the original order and his intention to have a similar report prepared by a psychologist of his choosing. The Court granted leave for parties to inspect documents produced by the New South Wales Police and School 2, and for the father to issue subpoenas to the child’s general practitioner and the Department of Immigration. The mother withdrew her objection to the father inspecting material produced by X Security.

The Court adjourned the interim parenting proceedings to 15 August 2014. Until that date, all orders for time to be spent and communication between the child, N, and her father were suspended.

Orders

Orders of the court

That the father’s application that Johnston J be disqualified from further hearing applications in these proceedings is dismissed.

That all parties are given leave to inspect all documents produced on subpoena by the New South Wales Police and School 2.

That the father’s application for an order to discharge Mr Duncan Holmes as Independent Children’s Lawyer is dismissed.

That the Court notes that the father has appealed against the order made on 11 June 2014 for preparation of a family report.

That the Court understands that the father would propose to have a similar report prepared by a psychologist of his choosing.

That the father’s application for a stay of the orders of 11 June 2014 relating to preparation of a family report is dismissed.

That the interim parenting proceedings are adjourned to 10:00 am on 15 August 2014.

That the Court notes that the Court has written submissions on behalf of the mother and a note of the material to be relied on by her.

That the Court notes that the father relies on all his affidavits in relation to those proceedings and that each of the parties will have opportunity to address the Court in respect of the orders sought on that occasion.

10.

That the father is given leave to have a subpoena issued and served on the child’s general practitioner Dr W and the Department of Immigration.

11.

That the Court notes that the mother withdraws her objection to the father inspecting material produced by X Security.

12.

That until 5:00 pm on 15 August 2014 all orders for time to be spent and communication between N born on … 2002 and her father are suspended.

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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