Kettle and Baker - [2010] FamCA 1016

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER

[2010] FamCA 1016

FAMILY LAW – PROCEDURE – Inspection of subpoena – application for McKenzie Friend
FAMILY LAW – COURTS AND JUDGES – application to disqualify judge

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Batey-Elton & EltonNo. 2 (2008) FamCAFC 202
Batey-Elton & Elton No. 2 (2010) FamCA 271

Gallo v Dawson (1990) 93 ALR 479

APPLICANT:

Mr Kettle

RESPONDENT:

Ms Baker

INDEPENDENT CHILDREN’S LAWYER:

Ms K. Berck

FILE NUMBER:

BRC

6532

2009

DATE DELIVERED:

2 November 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

2 November 2010

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Ms Ellis of Burchill & Horsey Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Berck of Berck & Associates

Orders

IT IS ORDERED THAT

Mr B is permitted to act today as a silent McKenzie Friend for the father.
The oral application by the father that Justice Murphy be disqualified from hearing this matter is dismissed.
The oral application by the father that Mr B, or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, assist him with inspecting subpoena documents, or acting as his agent to do so, is dismissed.
The Application in a Case filed on 20 August 2010 in respect of Mr B acting as an advocate for the father is dismissed.
AND IT IS NOTED THAT such application is dismissed in respect of any procedural hearings as part of the court’s case management system, but does not preclude any application being made as to whether Mr B be permitted to act as an advocate for the father in any interim or final hearing for parenting orders, with any such application to be heard by the judge sitting at any such hearing.

IT IS FURTHER ORDERED THAT

The Father file and serve, by 4.00pm on 26 November 2010, an Application in a Case supported by such affidavit material as he might consider appropriate, setting out the order that he seeks in respect of the proposed direction sought by the Independent Children’s Lawyer that the Family Consultant Ms S prepare a full family report after viewing the subpoenaed materials and further interviewing the parties, the child and any other significant person.
The hearing of the Application in a Case referred to in the previous paragraph of these Orders, be listed for hearing in the Magellan Directions List at 11.00am on 8 December 2010 in the Brisbane Registry of the Family Court of Australia.
All outstanding applications are adjourned for directions to progress the matter to final hearing, to the Magellan Directions List at 11.00am on 8 December 2010.

IT IS DIRECTED THAT

A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) be provided to the solicitor for the mother and to the father.
Subject to the…

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: [2010] FamCA 1016
Decision Date: 2 November 2010

CaseChat Overview and Summary

In the Family Court of Australia, Justice Murphy considered applications made by the father in proceedings concerning parenting orders. The father sought the disqualification of Justice Murphy from hearing the matter and also sought to have a Mr B assist him with inspecting subpoenaed documents, either as a silent McKenzie Friend or as an agent. The father also made an oral application for Mr B to act as his advocate.

The court was required to determine whether to grant the father's applications for the disqualification of the judge, for Mr B to act as a silent McKenzie Friend, for Mr B to assist with inspecting subpoenaed documents, and for Mr B to act as an advocate. Additionally, the court considered an application by the Independent Children's Lawyer regarding the preparation of a family report and the inspection of subpoenaed documents.

Justice Murphy dismissed the father's application for disqualification, finding no basis for it. The court permitted Mr B to act as a silent McKenzie Friend for the father. However, the applications for Mr B to assist with inspecting subpoenaed documents or to act as an agent for this purpose were dismissed, as was the application for Mr B to act as an advocate in procedural hearings, though this did not preclude future applications regarding advocacy at interim or final hearings. The court also ordered the father to file an application concerning the Independent Children's Lawyer's proposed direction for a family report, to be heard on 8 December 2010. Directions were made regarding the provision of a s 69ZW Report and the inspection and copying of subpoenaed documents, with leave granted to the Independent Children's Lawyer to issue further subpoenae.

Orders

Orders of the court

IT IS ORDERED THAT

Mr B is permitted to act today as a silent McKenzie Friend for the father.

The oral application by the father that Justice Murphy be disqualified from hearing this matter is dismissed.

The oral application by the father that Mr B, or any person other than a properly-qualified person admitted to practice as a legal practitioner in Queensland, assist him with inspecting subpoena documents, or acting as his agent to do so, is dismissed.

The Application in a Case filed on 20 August 2010 in respect of Mr B acting as an advocate for the father is dismissed.

AND IT IS NOTED THAT such application is dismissed in respect of any procedural hearings as part of the court’s case management system, but does not preclude any application being made as to whether Mr B be permitted to act as an advocate for the father in any interim or final hearing for parenting orders, with any such application to be heard by the judge sitting at any such hearing.

IT IS FURTHER ORDERED THAT

The Father file and serve, by 4.00pm on 26 November 2010, an Application in a Case supported by such affidavit material as he might consider appropriate, setting out the order that he seeks in respect of the proposed direction sought by the Independent Children’s Lawyer that the Family Consultant Ms S prepare a full family report after viewing the subpoenaed materials and further interviewing the parties, the child and any other significant person.

The hearing of the Application in a Case referred to in the previous paragraph of these Orders, be listed for hearing in the Magellan Directions List at 11.00am on 8 December 2010 in the Brisbane Registry of the Family Court of Australia.

All outstanding applications are adjourned for directions to progress the matter to final hearing, to the Magellan Directions List at 11.00am on 8 December 2010.

IT IS DIRECTED THAT

A copy of the s 69ZW Report by the Department of Communities (Child Safety Services) be provided to the solicitor for the mother and to the father.

Subject to the Independent Children’s Lawyer identifying any documents which include objection to inspection, the Independent Children’s Lawyer alone is granted leave to copy, and the solicitors for the mother, and the father are granted leave to inspect, the documents produced pursuant to subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.

10.

Leave is granted to the Independent Children’s Lawyer and the parties (or any properly qualified person admitted to practice as a legal practitioner in Queensland acting on their behalf), to inspect the court files BRF2360/2002 and/or BRC6532/2009.

11.

The Independent Children’s Lawyer is granted leave to issue subpoenae directed to the Commissioner of Police and the Director General, Department of Communities.

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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