J & B

[2005] FamCA 1154

[2005] FamCA 1154

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE   Appeal No. NA 69 of 2003

File No. BRF 9948 of 1999

IN THE MATTER OF:

J

Appellant Father

- and -

B

Respondent Mother

REASONS FOR JUDGMENT

CORAM:  Finn, Holden and Warnick JJ
DATE OF HEARING:        1 October 2004
DATE OF JUDGMENT:     30 November 2005

APPEARANCES:     

Mr Laurie of Counsel (instructed directly by the appellant father, PO Box 580 Nerang QLD 4211) appeared on behalf of the appellant.

Ms Hogan of Counsel (instructed by Legal Aid QLD, 44 Herschel Street, Brisbane QLD 4001) appeared on behalf of the respondent.

APPEAL SUMMARY

MATTER:  J v B
APPEAL NUMBER:  NA 69 of 2003
  (BRF 9948 of 1999)
CORAM:  Finn, Holden and Warnick JJ
DATE OF HEARING:   1 October 2004           
DATE OF JUDGMENT:                 30 November 2005

CATCHWORDS:     

FAMILY LAW – APPEAL – RESIDENCE and CONTACT – UNACCEPTABLE RISK – Before adjourning residence and contact proceedings on a part-heard basis, Jerrard J determined that the father did not present an unacceptable risk of abuse to the children – Jerrard J ordered that the children continue to reside with the mother on an interim basis and have unsupervised contact with the father – While the matter was adjourned part-heard Jerrard J retired – Lawrie J (“the trial Judge”) conducted the final hearing and found that the father did pose an unacceptable risk of abuse to the children and ordered that they reside with the mother and have supervised contact with the father – Whether the trial Judge erred in re-determining whether the father posed an unacceptable risk of abuse to the children when Jerrard J had already made findings on that question, and in circumstances where the evidence presented before her Honour had been prepared on the basis that that question was no longer in issue – Whether the father had been denied procedural fairness by the trial Judge in that he had approached the adjourned hearing on the basis that the question of unacceptable risk had already been determined – Whether the trial Judge’s decision was against the evidence and/or the weight of the evidence – Whether the trial Judge failed to give adequate reasons.

Legislation cited:

Family Law Act 1975 (Cth): s 68F(2)

Caselaw cited:

Bennett v Bennett (1991) FLC 92-191

Findlay and Boniface (unreported, [2000] FamCA 676)

A & J (1995) FLC 92-619

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Athens & Anor v Randwick City Council [2002] NSWCA 83

M and M (1988) FLC 91-979

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

V & R (unreported [2004] FamCA 1081)

TF & JF & Children’s Representative (2005) FLC 93-227

Appeal dismissed.

No order as to costs.

1. This is an appeal by the father against orders made on 8 August 2003 by Lawrie J which provided that the then five year old twin sons of the father’s relationship with the mother should reside with the…