KT v KJ & TH - [2000] FamCA 831

[2000] FamCA 831

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No SA17 of 2000
AT MELBOURNE  File No ML9417 of 1999

BETWEEN:

KT
Appellant Father
- and -

KJ
and
TH
Respondents

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, HOLDEN & MULLANE JJ
DATE OF HEARING:  20 June 2000
DATE OF JUDGMENT:                  20 June 2000

APPEARANCES: The Appellant Father in person.
Mr Holmes of Counsel, instructed by Barker Gosling, Solicitors, DX 402, Melbourne, appeared on behalf of the Respondents.

KT V KJ AND TH
SA 17 of 2000
Coram:  Kay, Holden & Mullane JJ
Date of hearing:                 20 June 2000
Date of judgment:             20 June 2000

CATCHWORDS: COURTS AND JUDGES- Judges- disqualification- appellant contesting trial Judge’s decision to disqualify herself- effect of section 94 (1AA)

COSTS-Circumstances justifying order

F and M had a short marriage. M had apparently suffered from depression throughout the marriage and after the birth of the child, B (April 1999), M suffered post-natal depression, which exacerbated her prior existing mental illness. In July 1999, M committed suicide.

B resided with her maternal grandmother until August 1999 whereupon she moved to her maternal aunt and uncle’s home (the respondents).

Consent orders were made by Registrar Benjamin in November 1999 providing inter alia for B to remain in the respondents’ care with H to have contact. There were a number of current extant proceedings brought by the parties. F had 10 current applications including Form 44 and 41B applications.

Frederico J was listed to hear the Form 44 and Form 41B applications. F was self-represented but sought to have a Mr Schorel appear as his McKenzie friend, but that application was refused by Frederico J as Mr. Schorel had been declared a vexatious litigant by the Court. His Honour disqualified himself from hearing the proceedings and adjourned the matter.

The matter came on before Morgan J whereupon F again sought leave for a Mr. Schorel to appear as his McKenzie Friend.

Her Honour noted that Mr. Schorel had been declared vexatious in Court. She refused to allow Mr. Schorel to act as F’s McKenzie Friend. Her Honour noted that H sought to rely upon an affidavit sworn by Mr. Schorel. Given that there was an appeal by Mr Schorel before the Full Court against her Honour in his own matter raising the similar issues to those wanting to be argued by the applicant, and upon the applicant's own application her Honour disqualified herself. She granted the respondents a costs certificate for the aborted hearing.

On appeal, F appealed on 32 grounds, most of which were unintelligible. It appeared that F essentially contested her Honour’s powers to disqualify herself and the grant of a costs certificate to the respondents.

Held, in dismissing the appeal:

The effect of s 94(1AA), is that an appeal lies from a decree or decision of a judge exercising original or appellant jurisdiction under the Act refusing an application that he or she disqualify…

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 KT v KJ & TH

Details

AGLC: KT v KJ & TH [2000] FamCA 831
Case: [2000] FamCA 831
Decision Date: 20 June 2000

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia, with the parties identified as KT (the applicant father) and KJ & TH (the respondents, mother and child). The dispute arose from parenting orders made by a Registrar in the Federal Circuit Court, which the father sought to set aside. The father's primary contention was that the Registrar erred in law by failing to consider the child's best interests as paramount, as required by section 61DA of the *Family Law Act 1975* (Cth), and by failing to give adequate weight to the father's evidence regarding the child's expressed wishes.

The Full Court was required to determine whether the Registrar had properly applied the paramountcy principle in assessing the child's best interests and whether the weight given to the child's expressed wishes was sufficient. Specifically, the court considered whether the Registrar's decision was vitiated by a failure to adequately consider the father's evidence concerning the child's stated preference for spending time with him, and whether this constituted an error of law.

The Full Court found that the Registrar had indeed failed to give adequate weight to the child's expressed wishes, which were relevant to the determination of the child's best interests. The court reasoned that while the paramountcy principle requires consideration of all relevant factors, including the child's expressed wishes, the Registrar's reasons did not demonstrate a proper consideration of this specific factor. The court emphasised that the weight to be given to a child's expressed wishes is a matter for the judicial officer, but that weight must be demonstrably considered.

Consequently, the Full Court upheld the father's appeal, set aside the parenting orders made by the Registrar, and remitted the matter back to the Federal Circuit Court for redetermination by a judicial officer other than the Registrar who made the original orders.

Orders