KAVANAGH & KAVANAGH - [2016] FamCAFC 233

FAMILY COURT OF AUSTRALIA

KAVANAGH & KAVANAGH

[2016] FamCAFC 233

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge had reserved judgment after a contested parenting trial in which allegations of sexual abuse of a child of the parties had been made – Where the Independent Children’s Lawyer sought to re-open the hearing and delay delivery of judgment because the husband had been charged with unrelated criminal charges concerning child pornography and was released on a bail condition that he have no contact with children.

FAMILY LAW – APPEAL – Where the husband’s time with the children had been subject to a supervision requirement before the trial judge had commenced the trial but the husband had not been exercising that time and had not seen the children for over a year.

FAMILY LAW – APPEAL – Where the trial judge considered the lack of time spent, the seriousness of the criminal charges and the uncertainty about whether there was evidence that the children were involved in the criminal activity – Where the husband argued supervision would protect the children – Where the trial judge suspended the supervision order – No error found.

FAMILY LAW – APPEAL – Where the husband complained that the trial judge allowed evidence to be considered which he had not had an opportunity to respond to – Trial judge offered the husband an adjournment but that was rejected – No error found.

FAMILY LAW – APPEAL – Where the husband complained that the trial judge was biased but did not raise the issue at the time – No error found – Appeal dismissed.

FAMILY LAW – COSTS – Costs sought by Independent Children’s Lawyer against husband – No hardship established by husband – Order made for husband to pay Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) – s 60CA, s 60CC, s 61DA, s 69ZR

Dunne v P (2004) 29 WAR 232
Goode and Goode (2006) FLC 93-286
Miller & Harrington (2008) FLC 93-383
P v P (1994) 181 CLR 583
U v U (2002) 211 CLR 238

APPELLANT:

Mr Kavanagh

RESPONDENT:

Ms Kavanagh

INDEPENDENT CHILDREN’S LAWYER:

Ms Lilley

FILE NUMBER:

BRC

8664

2011

APPEAL NUMBER:

2016

DATE DELIVERED:

11 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy & Cronin JJ

HEARING DATE:

11 November 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 February 2016

LOWER COURT MNC:

[2016] FamCA 162

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dart

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal be dismissed.
The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,372.50.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kavanagh & Kavanagh has been approved by the Chief…

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: KAVANAGH & KAVANAGH [2016] FamCAFC 233
Case: [2016] FamCAFC 233
Decision Date: 11 November 2016

CaseChat Overview and Summary

The case of Kavanagh & Kavanagh involved a contested parenting dispute in which allegations of sexual abuse against a child of the parties had been raised. The appeal was heard in the Family Court of Australia. The Independent Children’s Lawyer sought to reopen the hearing and delay the delivery of judgment, given that the husband had been charged with unrelated criminal charges concerning child pornography and was released on bail with a condition that he have no contact with children. The husband’s time with the children had previously been supervised, but he had not been exercising that time and had not seen the children for over a year.

The legal issues before the court included whether the trial judge erred in suspending the supervision order, allowing the husband’s time with the children to lapse, and whether there was bias in the trial judge’s handling of the case. The husband argued that supervision would protect the children, but the court found no error in the trial judge’s decision. The husband also complained about the consideration of evidence he had not been given the opportunity to respond to, and about perceived bias in the trial judge. However, since the husband had not raised the issue of bias at the time, the court found no error in this regard either.

The court dismissed the husband's appeal, finding no procedural error in the trial judge's handling of the case. The husband's complaints about the evidence and perceived bias did not meet the threshold for reversal of the trial judge's decisions. Additionally, the court ordered the husband to pay the Independent Children’s Lawyer's costs, amounting to $4,372.50, as the husband had not established any hardship that would prevent him from meeting this obligation. The appeal was dismissed, and the order for costs was confirmed.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,372.50.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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