Scott and Munayallan

Case [2019] FamCAFC 246

FAMILY COURT OF AUSTRALIA

SCOTT & MUNAYALLAN [2019] FamCAFC 246
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the father failed to file a draft index to the appeal book in accordance with r 22.13 of the Family Law Rules 2004 (Cth) – Where the father had a sufficient reason for not filing the draft index to the appeal book on time – Where there is no arguable ground of appeal – Where it would be futile to permit the appeal to proceed and to do so would inflict an injustice on the mother – Where the father’s failure to comply with orders of the Court, including costs orders made by consent, was taken into account – Application for reinstatement dismissed – Father to pay the mother’s costs of the application in a fixed sum.

Legal Aid Commission Act 1979 (NSW) s 57

Family Law Rules 2004 (Cth) rr 22.13, 22.44

Astin & Harlow [2008] FamCAFC 66
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
APPLICANT: Mr Scott
RESPONDENT: Ms Munayallan
FILE NUMBER: SYC 59 of 2010
APPEAL NUMBER: EA 78 of 2019
DATE DELIVERED: 16 December 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge J
HEARING DATE: 7 and 21 November 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 15 August 2019
LOWER COURT MNC: [2019] FamCA 676

REPRESENTATION

THE APPLICANT: In person
COUNSEL FOR THE RESPONDENT: Mr Duc

Orders

  1. The Application in an Appeal filed on 9 October 2019 for reinstatement of EA 78 of 2019 be dismissed.

  2. The applicant pay the respondent’s costs of the application fixed in the sum of $3,200.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 78 of 2019
File Number: SYC 59 of 2010

Mr Scott

Applicant

and

Ms Munayallan

Respondent

REASONS FOR JUDGMENT

Introduction

  1. By an Application in an Appeal filed on 9 October 2019, Mr Scott (“the father”) seeks reinstatement of his appeal against parenting orders made by a judge of the Family Court of Australia on 15 August 2019. The father’s application for reinstatement of the appeal is opposed by…

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AGLC
Scott and Munayallan [2019] FamCAFC 246
Case
[2019] FamCAFC 246
Decision Date

CaseChat Overview and Summary

Scott and Munayallan is a case concerning the appeal of a father against the Family Court's decision regarding the custody arrangement of his children. The primary judge had ruled against the father's request for equal shared time with the children, which was previously in place since November 2014. The father, who had sole custody and was the primary carer of the children since 2009, argued that the primary judge was biased against him and did not act in the best interests of the children. The father claimed that the primary judge disregarded the recommendations of an Independent Children’s Lawyer and a psychologist, and did not consider the children's documented wishes for equal time with both parents.

The legal issues before the court were whether the primary judge was biased against the father and whether the primary judge acted in the best interests of the children in making his decision. The father argued that the primary judge showed bias by not accepting the recommendations of the Independent Children’s Lawyer and the psychologist, and by allowing the mother to re-open her case and tender further documents while denying the father the same opportunity. The father also claimed that the primary judge acted in a way that was contrary to the best interests of the children by not granting their wishes for equal time with both parents.

The court found that the father had not provided sufficient evidence to support his claims of bias and that the primary judge had acted in accordance with the principles outlined in Michel v The Queen. The court found that the primary judge had considered all relevant factors, including the children's wishes, and had made a decision that was in their best interests. The court also found that the primary judge had not acted with any personal disliking towards the father and had not forfeited the advantage of judicial detachment. The appeal was dismissed, and the father was ordered to pay the respondent's costs of the application.

Orders

Orders of the court

1.

The Application in an Appeal filed on 9 October 2019 for reinstatement of EA 78 of 2019 be dismissed.

2.

The applicant pay the respondent’s costs of the application fixed in the sum of $3,200.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The first proposed ground of appeal is that there was a reasonable apprehension that the primary judge was biased against the father (Ground 1). This ground does not say when, where or in what manner the primary judge was biased against the father. However, further grounds of appeal deal with the same issue and an indication of what the father relies on can be gleaned from them. Those grounds are:11.[The primary judge] showed apprehend bias by not accepting the recommendation of the ICL … “for the parents to continue equal shared time with the children. The ICL drafted Consent Orders stating equal shared time. The equal shared time was in place between the parents since November 2014. [The father] had sole custody of the children for 2014 and the primary carer of the children since 2009.12.[The primary judge] shown apprehend bias by not accepting the recommendation of the ICL and Dr [G] “for the parents to continue equal shared time with the children.13.[The primary judge] did not act in the best interests of the children by not granted their wishes that they spend equal time with both parents. This was documented in the Family Report, that the children themselves want the 50/50 basis to remain, this was repeated by [the father] during cross [examination]. The orders did not take the Children needs into consideration. Your honour was bias against me and wanted to punish me for some injustice reason. But not only was honour was punishing me but was punishing, hurting and cause serve damage to my children. On the 18 August 2019 I told my children about variation of time, both my children could not stop crying and where emotionally destroyed. The court is supposed to act in the best interest of the children but is doing the complete opposite and not granting their best interest and their needs. My children said and begged me to fight against the variation. [The primary judge] has a personal disliking to the father which effected his decision by not acting in the best interest of the children under Section 66cc.14.[The primary judge], shown apprehend bias, on the 21 June 2019 your honour ordered the that the mother can re-open her case and tender further documents, but will not allow nor apply the same order for the father.…27.Your honour acted Apprehend bias, against [the father]. As per paragraph 184 of your honours judgment, I completely deny this allegation, the mother has not provided any supporting evidence. I have not engaged in family violence. I have not committed any form of violence what so ever. I have not been convicted of any crimes! There was no documented evidence that was engaged in family violence.28.The trial judge forfeited the advantage of judicial detachment, not adhered to each of the principles espoused in Michel v The Queen [2010] 1 WLR 879.29.[The primary judge] has a personal disliking to the father which effected his decision by not acting in the best interest of the children under Section 60cc.(Exhibit 4) (As per the original)

Ratio Decidendi

Legal Principle Established

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