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ROBARDS & MILLER

ROBARDS & MILLER

Case [2013] FamCA 852 22 October 2013

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

ROBARDS & MILLER

[2013] FamCA 852

FAMILY LAW – COURTS AND JUDGES – Disqualification – application that the Court disqualify itself by reason of apprehended judicial bias – consideration of the application of the test in relation to parenting proceedings under Division 12A of the Act – the requisite qualities of the “fair minded lay observer” – necessity for the answer to the test to be firmly established – application dismissed.

FAMILY LAW – EVIDENCE – Expert evidence – family report – application that the family report writer be discharged – application that a new family report be requested – consideration as to the context in which the application is made – significance of the proceedings being part heard – significance of the majority of the family report writer’s evidence having been concluded – consideration as to the nature of the family report in the context of evidence before the Court – application dismissed.

Family Law Act 1975 (Cth) Division 12A, ss. 60G(2), 62G(2), 62G(8), 69ZN, 69ZQ, 69ZR, 69ZX

Vakauta v Kelly (1989) 167 CLR 568
Johnson v Johnson (2000) 201 CLR 488
Antoun v R [2006] HCA 2
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Re JRL; Ex parte CJL [1986] HCA 39
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577
Australian Securities and Investment Commission v Reid [2005] FCA 1274
Hall (1979) 5 FamLR 411
British American Tobacco Australia Services Ltd v Laurie [2011] HCA 9

Hall and Hall (1979) 5 FamLR 609
Carpenter and Lunn (2008) FLC 93-377
Klein & Klein [2010] FamCAFC 150

APPLICANT:

Ms Robards

RESPONDENT:

Mr Miller

INDEPENDENT CHILDREN’S LAWYER:

Ms Temelkovska

FILE NUMBER:

SYC

3337

2009

DATE DELIVERED:

22 October 2013

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

4 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Doosey

SOLICITOR FOR THE APPLICANT:

Rossi Simicic Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Humphreys

SOLICITOR FOR THE RESPONDENT:

Hansons Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Temelkovska

Orders

That the Application in a Case filed by the mother on 30 August 2013 be dismissed.
That the costs of the independent children’s lawyer and the applicant father of and incidental to the said application be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robards & Miller has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 3337 of 2009

Ms Robards

Applicant

And

Mr Miller

Respondent

REASONS FOR JUDGMENT

The Proceedings

The primary proceedings before the Court are parenting proceedings between the applicant father and the respondent mother in relation to the child M Miller-Robards, born in 2005. The child is presently eight years of age.
The present application before the Court is an application by the respondent mother that…

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 ROBARDS & MILLER

Details

AGLC: ROBARDS & MILLER [2013] FamCA 852
Case: [2013] FamCA 852
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by the respondent mother seeking the disqualification of the presiding judge due to apprehended bias, the discharge of the family report writer, and the preparation of a new family report. The primary proceedings concerned parenting arrangements for the parties' eight-year-old child.

The court was required to determine whether there was a reasonable apprehension of bias on the part of the judge, such that a fair-minded lay observer would conclude that the judge might not bring an impartial mind to the issues. Additionally, the court had to consider whether to discharge the family report writer and order a new report, particularly given that the proceedings were part-heard and the majority of the family report writer's evidence had already been concluded.

The judge applied the test for apprehended bias, which requires the court to consider whether a fair-minded lay observer, properly informed of all the circumstances, would apprehend that the judge might not bring an impartial mind to the issues. The court found that the mother's concerns did not meet this threshold, and the application for disqualification was dismissed. Regarding the family report, the court noted the significance of the proceedings being part-heard and the substantial evidence already presented by the family report writer. The court concluded that discharging the report writer and ordering a new report would not be in the best interests of the child and dismissed this part of the application as well.

The mother's application in a case was dismissed. The costs of the independent children's lawyer and the applicant father in relation to the application were reserved.

Orders