KAMANO & KAMANO - [2015] FamCAFC 111

FAMILY COURT OF AUSTRALIA

KAMANO & KAMANO

[2015] FamCAFC 111

FAMILY LAW – APPEAL – CHILDREN – Where it is found that there is no merit in any of the grounds of appeal advanced by the mother – Appeal dismissed with no order as to costs.

FAMILY LAW – APPEAL – Where ground of appeal and submissions by Counsel assert actual bias by pre-judgment by trial judge – Where no foundation for ground or submissions – Breach of Counsel’s duty – Referral to Bar Association of Queensland.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for leave to file application to adduce further evidence – No adequate explanation for delay and failure to comply with the Family Law Rules 2004 – Where even if leave given the asserted premise for the application to adduce further evidence is not made out – Application for leave refused.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Chatzipantelis v Grimwade Costings [1966] VR 242
Council of the Queensland Law Society Inc v Wright [2001] QCA 58
Giannarelli v Wraith (1988) 165 CLR 543
Vozza v Tooth & Co Ltd [1963] NSWR 1675
White Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169

APPELLANT:

Ms Kamano

RESPONDENT:

Mr Kamano

INDEPENDENT CHILDREN’S LAWYER:

Craney Family Solicitors

FILE NUMBER:

NCC

2413

2008

APPEAL NUMBER:

2013

DATE DELIVERED::

12 June 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

12 May 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 May 2013

LOWER COURT MNC:

[2013] FamCA 348

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Merkin

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Craney Family Solicitors

Orders

The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kamano & Kamano has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2013
File Number: NCC 2413 of 2008

Ms Kamano

Appellant

And

Mr Kamano

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Notice of Appeal filed on 18 June 2013 Ms Kamano, the mother of the children J, born in 2002, and T, born in 2004, appeals against final parenting orders made by Cleary J on 22 May 2013 following a four day trial of parenting proceedings.
Each of Mr Kamano, the father of the children, and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
At trial the mother had ultimately sought orders for, inter alia, the parents to have equal shared parental responsibility for the children, for the children to live with her, and for them to spend three (3)…

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

Case: [2015] FamCAFC 111
Decision Date: 12 June 2015

CaseChat Overview and Summary

In the matter of Kamano & Kamano, the mother sought to appeal a decision made by the Family Court regarding arrangements and decision-making for the children. The primary issues that the court had to decide were whether the grounds of appeal advanced by the mother had merit, and if the trial judge was actually biased or prejudiced in the case.

The court found that none of the grounds of appeal presented by the mother had any merit. The assertion that the trial judge had shown actual bias or pre-judgment was found to be unfounded. The court further determined that the mother's counsel had breached their duty by advancing this ground of appeal without proper foundation or evidence. As a result, the counsel's conduct was referred to the Bar Association of Queensland.

Additionally, the mother sought leave to file an application to adduce further evidence, which was denied. The court found that there was no adequate explanation for the delay and failure to comply with the Family Law Rules 2004. Even if leave had been granted, the court was of the opinion that the premise for the application to adduce further evidence was not made out.

In conclusion, the appeal was dismissed, and there was no order as to costs. The court found that the mother's counsel had breached their duty, and their conduct was referred to the Bar Association of Queensland.

Orders

Orders of the court

1. The appeal be dismissed.

2. There be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Indeed, the specific content of the relevant presentation was not addressed at all in argument by Ms Merkin. To the contrary, this Court pointed out to Ms Merkin during argument that her Honour had said, in the relevant presentation:In my view, there is nothing more important than that a court hearing is a process of finding of fact and an application of the law to the facts found. It is not an exercise of identifying a type of case…and:Each case is a dispute, usually between parents, but sometimes others, as to appropriate arrangements and decision making for children. It is not an opportunity to apply labels outside legal expertise. Judges may know something, or very little about social science. Whatever the state of that knowledge it cannot be brought to bear on a case without there being evidence. (Emphasis added) Not only do these observations by her Honour correctly reflect the law, they are diametrically opposed to the proposition for which Ms Merkin contends in purported reliance upon this presentation as support for this ground. This ground of appeal is not only devoid of merit but is fanciful. The seriousness of the error contended for by this ground, and the fact that it, and the argument in support of it is so devoid of merit and so lacking in foundation as to be fanciful, raises serious concerns about Ms Merkin’s conduct in advancing it at all. The ground and the argument in support of it plainly suggest actual bias by pre-judgment. That is a serious assertion central to judicial integrity and the integrity of the judicial process. The justification for reserving the practice of law to qualified lawyers is that lawyers, as officers of the Court, owe their paramount duty to the administration of justice. That principle is reflected in many published rules of professional conduct including the New South Wales Barrister’s Rules; the Queensland Barrister’s Rules and the Barrister’s Conduct Rules of the Australian Bar Association. That paramount duty is beyond doubt. (See Giannarelli v Wraith (1988) 165 CLR 543; White Industries (QLD) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169; Vozza v Tooth & Co Ltd [1963] NSWR 1675; Chatzipantelis v Grimwade Costings [1966] VR 242.) That paramount duty incorporates:a)A duty not to mislead the Court and as part of that duty not to cast unjustifiable aspersions on any party or witness (or judge); andb)A duty to exercise an independent discretion or judgment to ensure that the conduct of the client’s case is in accordance with the dictates of the administration of justice; andc)A duty to ensure that where serious discreditable misconduct is alleged to ensure there exists a proper foundation to so do (Giannarelli v Wraith (supra) and White Industries (QLD) Pty Ltd v Flower & Hart (a Firm) (supra)). The duty also includes a duty to act honestly and with candour in all dealings with the Court. In Council of the Queensland Law Society Inc v Wright [2001] QCA 58 Justice McMurdo, President of the Queensland Court of Appeal, referred to the duty in these terms in dealing with disciplinary proceedings:The effective administration of the justice system and public confidence in it substantially depends on the honesty and reliability of practitioners’ submissions to the Court. This duty of candour and fairness is quintessential to the lawyer’s role as officer of the Court; the Court and the public expect and rely upon it, no matter how new or inexperienced the practitioner. Breaches such as this are hard to detect and once established to the requisite standard are deserving of condign punishment, not only as a deterrent but to reassure the public that such conduct on the part of lawyers will not be tolerated.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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