Kennedy & Kennedy

[2010] FamCAFC 195

FAMILY COURT OF AUSTRALIA

KENNEDY & KENNEDY [2010] FamCAFC 195

FAMILY LAW - APPEAL – PARENTING – PROCEDURAL FAIRNESS – Whether Federal Magistrate denied father procedural fairness in relying on expert evidence of child’s treating specialists admitted after Family Consultant evidence in circumstances where Family Consultant not recalled to comment on expert evidence – Where no objection taken by father’s counsel to admission of expert reports – Where father’s counsel did not request the Family Consultant be recalled – No procedural unfairness established.

FAMILY LAW - APPEAL – PARENTING – PROCEDURAL FAIRNESS – Whether Federal Magistrate denied father procedural fairness in making a finding that father’s conduct during the marriage fell within the statutory definition of “family violence” in s4(1) of the Family Law Act 1975 (Cth) without notice to the father’s counsel – Where contest about equal or sole parental responsibility – Where father’s counsel chose not to cross-examine the mother on allegations of domestic violence – No merit in procedural fairness grounds.

FAMILY LAW - APPEAL – PARENTING – FAMILY REPORT – Whether Federal Magistrate erred in departing from recommendations of Family Consultant – Where expert evidence adduced after Family Consultant’s evidence – Where child was developmentally delayed – Whether Federal Magistrate erred in failing to give sufficient reasons for departure from Family Consultant’s recommendation – Reasons were adequate – No error in departing from recommendations.

FAMILY LAW - APPEAL - PARENTING - FAMILY REPORT – Whether Federal Magistrate erred in giving insufficient weight to recommendations of Family Consultant – No error in exercise of discretion established.

FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate erred in failing to make a Jones v Dunkel (1959) 101 CLR 298 finding in respect of the mother’s failure to call the maternal grandmother – Where failure to comment on lack of maternal grandmother’s evidence must be regarded in overall context of the reasons – Where father did not challenge that the child should continue to live with the mother – No appealable error.

FAMILY LAW - APPEAL – PARENTING – No merit in appeal – appeal dismissed.

FAMILY LAW - COSTS – Where father has been wholly unsuccessful in appeal – Where there should be a departure from s 117(1) of the Family Law Act 1975 (Cth) – The father to pay the mother’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth), s60B, s60CC, s 61DA, s 69ZX, s 117(1)
Federal Proceedings (Costs) Act1981 (Cth)

Andrew & Delaine [2009] FamCAFC 182
CJD v VAJ (1998) 197 CLR 172
D & P [2006] FamCA 170
Friscioni & Friscioni [2010] FamCAFC 108
Hall & Hall (1979) FLC 90-713
Jones v Dunkel (1959) 101 CLR 298
KPR v MRS [2007] FamCA 1334
Malak & Mairie [2010] FamCAFC 170
Vakauta v Kelly (1989) 167 CLR 568

APPELLANT: Mr Kennedy

RESPONDENT: Ms Kennedy

FILE NUMBER: SYC 3281 of 2008

APPEAL NUMBER: EA 136 of 2009

DATE DELIVERED: 30 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: