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Kernot & Matson

Kernot & Matson

Case [2008] FamCA 756 4 September 2008

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FAMILY COURT OF AUSTRALIA

KERNOT & MATSON

[2008] FamCA 756

FAMILY LAW – CHILDREN – Interim Application - Exclusion of Family Report - Disqualification of Family Report Writer – Apprehension of Bias by Report Writer – Legitimate Material and Objectionable Material in Report – Whether Opinions Expressed by Report Writer are Outside Area of Expertise

Family Law Act 1975 (Cth)

R and R [2003] FamCA 1180
Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644
Idoport Pty ltd v National Australia Bank Ltd [2001] NSWSC 123
Pownall v Conlan Management P/L (1995) 12 WAR 370
Makita (Australia) P/L v Sprowles [2001] NSWCA 705
Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40

APPLICANT:

Mr Kernot

RESPONDENT:

Ms Matson

INDEPENDENT CHILDREN’S LAWYER:

Abrams Turner

FILE NUMBER:

SYC

1958

2007

DATE DELIVERED:

4 September 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

23 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson, Senior Counsel

SOLICITOR FOR THE APPLICANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Greenway

SOLICITOR FOR THE RESPONDENT:

Thurlow Fisher Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Gathercole

Orders

Orders made 23 July 2008 :

Orders 1 and 2 as sought in the application made by the father in the Application in a Case filed 22.08.08 be dismissed.
.....
The father’s further oral application in the same terms as sought in Order 1 in his Application in a Case filed 22 July 2008 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kernot & Matson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1958 of 2007

MR KERNOT

Applicant

And

MS MATSON

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The father and the mother seek different parenting orders in relation to W born in September 1997, R born in October 1999 and D born in June 2002. This case was set down for a final hearing commencing 28 July 2008.
The father filed an Application in a Case on 22 July 2008 in which he sought the following orders:-
1.That the Family Report [sic], Ms [V], be disqualified or excluded from evidence to be relied upon.
2.That in the event that order 1 is made, then:-
2.1A fresh Family Report be prepared by a Family Court Consultant [sic] as a matter of urgency;
2.2That the hearing of this matter commencing on 28 July 2008 be vacated.
The father also applied for a vacation of the hearing dates commencing 28 July 2008 based on other reasons. That application was successful for those other reasons.

THE FAMILY REPORT

Dr V (“the report writer”) prepared a report which was released by Federal Magistrate Sexton on 11 July 2008. The report was originally restricted to the legal representatives, but was then released to the parties, on conditions, by way of…

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.

Continue reading Kernot & Matson

Details

AGLC: Kernot & Matson [2008] FamCA 756
Case: [2008] FamCA 756
Decision Date: 4 September 2008

CaseChat Overview and Summary

The parties involved were the father and the mother, with Watts J presiding. The dispute concerned applications made by the father seeking orders, which were ultimately dismissed.

The central legal issue before the court was whether to grant the orders sought by the father in his applications filed on 22 August 2008 and 22 July 2008.

Watts J dismissed the father's applications. The reasons for this dismissal are not detailed in the provided text, but the outcome was a refusal of the orders sought by the father.

Orders

Orders of the court

Orders made 23 July 2008 :

Orders 1 and 2 as sought in the application made by the father in the Application in a Case filed 22.08.08 be dismissed.

.....

The father’s further oral application in the same terms as sought in Order 1 in his Application in a Case filed 22 July 2008 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kernot & Matson [2008] FamCA 756

Most Recent Citation

Stringer & Nissen [2023] FedCFamC2F 61

Cases citing this decision · 8 of 8 shown

Stringer & Nissen
[2023] FedCFamC2F 61 Para 36

…dress the mother’s concerns about Ms Q’s knowledge and capability. But even if it does not do so, as was observed by Watts J in Kernot & Matson [2008] FamCA 756 at [32]: Opinions formed in the process of interviewing children are by their very nature subjective. That, however, is not a basis for rejecting, out of h…
Alam & Sayid
[2021] FamCA 564 Para 23

…I do not accept these arguments. In Kernot v Matson (2008) 39 Fam LR 695; [2008] FamCA 756 (" Kernot "), Watts J considered the principle stated in Pownall but held at [47] that if the opinions of the family report writer were not based on entirely inadmissible evidence then there was no need to reject the entire b…
Duclos and Duclos
[2018] FamCA 1088 Para 1

…principles to those which guide the court in considering the applications for a judge to be disqualified ( R and R [2003] FamCA 1180; Kernot & Matson [2008] FamCA 756).…
PANERA & SLIEDELL
[2017] FCCA 1573 Para 1

…ual bias in the Report writer.” Later, Watts J in Kernot & Matson [2008] FamCA 756 at [16] was “comfortable in accepting” the proposition that a family consultant can be removed on the same basis as a Judge may be disqualified. However neither of those authorities bind me or otherwise require me to so hold. Procedu…
Thompson & Platt
[2016] FamCA 1116 Para 7

…examination could overcome the fundamental defect of a perception of bias or actual bias in the Report writer.” Later, Watts J in Kernot & Matson [2008] FamCA 756 at [16] was “comfortable in accepting” the proposition that a family consultant can be removed on the same basis as a Judge may be disqualified. However…
King & King
[2014] FCCA 163 Para 8

…ether the single expert should be discharged by reason of apprehended bias, should progress using similar principles (see eg. Kernot & Matson [2008] FamCA 756 at 16; Nepean & Treloar [2010] FamCA781 at 12). Although it must be noted that in the case of an assertion of an apprehension of bias against a decision make…
Nepean & Treloar
[2010] FamCA 781 Para 15

…It was suggested by the Court that it should have regard to the decision of Justice Watts in Kernot and Matson [2008] FamCA 756 where he considered the issue of whether reports which contained legitimate and objectionable material could be trimmed of the objectionable material. In this case, however, if the materia…
Gull and Rickett
[2009] FamCA 675 Para 4

…be based on similar principles to those which guide the court in considering an application for a judge to be so disqualified (see eg Kernot v Matson [2008] FamCA 756 per Watts J; R & R [2008] FamCA 1180, per Boland J).…

View all 8 citing cases →

Cases cited in this decision · 7 of 7 shown

MS R and MR R
[2003] FamCA 1180 Para 2

…Senior Counsel for the father referred to an unreported decision of Boland J in R and R [2003] FamCA 1180. He conceded that the facts of that case were very different to the current case. In that case, Boland J made an order discharging the appointment of a Order 30A expert (now a Chapter 15 expert) relying upon pri…
Idoport Pty Ltd v National Australia Bank Ltd
[2001] NSWSC 123 Para 17

…of hand, the opinion if given by a person with the requisite specialist knowledge (see Einstein J in Idoport Pty ltd v National Australia Bank Ltd [2001] NSWSC 123 at [83]).…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 3

…In Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644 at page 647 the High Court said that a judge should disqualify himself or herself:- ....if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to de…
[1995] WASC 117
[1995] WASC 117 Para 4

…Senior Counsel for the father referred to the judgment of the Full Court of the Supreme Court of Western Australia in Pownall v Conlan Management P/L (1995) 12 WAR 370. At page 376 Ipp J said:- As regards evidence that contains a mixture of objectionable hearsay and legitimate material, obviously there may be instan…
Ebner v The Official Trustee in Bankruptcy
[2000] HCA 637 Para 3

…In Ebner v The Official Trustee in Bankruptcy and Anor (2000) 176 ALR 644 at page 647 the High Court said that a judge should disqualify himself or herself:- ....if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question a judge is to decide…
[2001] NSWCA 705
[2001] NSWCA 705 Para 5

…Senior Counsel also referred to the statements of Heydon JA in Makita (Australia) P/L v Sprowles [2001] NSWCA 705 at page 729 about cross examining in the dark. That comment is made in the context of discussing Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40, where the…
Davie v Magistrates of Edinburgh
(1953) SC 34 Para 5

…oss examining in the dark. That comment is made in the context of discussing Davie v Lord Provost, Magistrates & Councillors of the City of Edinburgh (1953) SC 34 at 39-40, where the view was that all an expert needed to do was to establish that there is a relevant field of specialist knowledge; that he or she…

Legislation cited in this decision · 3

Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention
Family Law Regulations 1984 (Cth)
1 mention (from Para 3)