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Seaward and MacDuff (No. 4)

Seaward and MacDuff (No. 4)

Case [2012] FamCA 1147 19 October 2012

Statutory Construction

Civil Procedure

Family Law

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF (NO. 4)

[2012] FamCA 1147

FAMILY LAW – PRACTICE AND PROCEDURE – Applications in a case – application for disqualification of judicial officer and independent children’s lawyer – application for permission to publish an account of proceedings.

Family Law Act 1975 (Cth): ss 69ZM; 69ZN; 69ZQ; 68LA; 129(9)(b); 129(9)(g)

Bakarich v Commonwealth Bank of Australia [2010] NSWCA 43

Concrete Pty Limited v Parramatta Design and Developments Pty Limited (2006) 229 CLR 577

Ebner v Official Trustee (2000) 205 CLR 337
Forbes & Bream [2008] FamCAFC 189
Friscioni & Friscioni (Application for Transcript) [2009] FamCAFC 48
Johnson v Johnson (2000) 201 CLR 488;
Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70
Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421
Sampson & Hartnett (Provision of Tanscript) [2010] FamCAFC 220
Strahan & Strahan (Disqualification) (2009) FLC 93-414
Vakauta v Kelly (1989) 167 CLR 568

APPLICANT:

Mr Seaward

RESPONDENT:

Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel

FILE NUMBER:

SYC

2177

2011

DATE DELIVERED:

19 October 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

19 October 2012

REPRESENTATION

FOR THE APPLICANT:

Mr Seaward appeared in person

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Brian Samuel & Associates

Orders

That Order 4 of the father’s Application in a Case filed 3 August 2012 and Order 4 of the father’s Application in a Case filed 10 September 2012 is dismissed.
That Orders 5, 6, 7, 8, 9, 10, 12, 13, 15 and 16 of the father’s Application in a Case filed 3 August 2012 are dismissed.
That Order 14 of the father’s Application in a Case filed 3 August 2012 is withdrawn and dismissed.
That Orders 3 and 6 of the father’s Application in a Case filed 10 September 2012 are dismissed.
The Application in a Case filed by the applicant on 19 October 2012 is dismissed.
That the applicant has leave to reopen his Application for Final Orders limited to the following:
a.Paragraphs 31 to 50 of the applicant’s affidavit filed 2 October 2012;
b.Annexures D, F, G, H, I, J and K to the applicant’s affidavit filed 2 October 2012.
In the event that the respondent seeks to adduce evidence in relation to the above matters she shall file and serve any affidavits upon which she intends to rely by 10.00 am on 25 October 2012.
In the event that the respondent files evidence in accordance with the above order the further hearing of the substantive proceedings is listed at 10.00 am on 26 October 2012 before Ryan J.
In the event that the respondent does not file further evidence in accordance with Order 6 above the case shall be finalised by the receipt of written submissions in relation to which:
a.the applicant shall file and serve any submissions in relation to the reopened hearing by 31 October 2012;
b.the respondent…

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 Seaward and MacDuff (No. 4)

Details

AGLC: Seaward and MacDuff (No. 4) [2012] FamCA 1147
Case: [2012] FamCA 1147
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an application by Mr Seaward seeking the disqualification of the judicial officer and the Independent Children’s Lawyer (ICL) in proceedings involving Ms MacDuff. Mr Seaward also sought permission to publish an account of the proceedings. The applications were made after the final hearing of the parties' parenting application had been reserved.

The court was required to determine whether a fair-minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the questions before the court, based on an order made by the judge. Additionally, the court had to consider whether the ICL had breached his duties of impartiality and evidentiary-based submissions by referring to Mr Seaward's demeanour during a previous hearing.

Regarding the application to disqualify the judicial officer, the court applied the apprehended bias principle, as established in *Ebner v Official Trustee* and *Johnson v Johnson*. The court found that the order in question, which sought to organise anticipated issues, was permissible under sections 69ZN and 69ZQ of the *Family Law Act 1975* (Cth) and did not demonstrate a lack of impartiality. Consequently, the application for the judicial officer's disqualification was dismissed. In relation to the ICL, the court examined the ICL's comments in their context, noting that while demeanour can be a factor, it must be considered cautiously and supported by evidence. The court found that the ICL's remarks, made "on balance," were a fair summary of balanced submissions and did not demonstrate impermissible bias or a lack of impartiality, thus dismissing the application for the ICL's removal.

The court dismissed most of Mr Seaward's applications in a series of orders. However, the applicant was granted leave to reopen his Application for Final Orders concerning specific paragraphs of his affidavit and annexures. The court set out a timetable for the filing of further affidavits and written submissions, with a further hearing listed for 26 October 2012, or finalisation by written submissions if no further evidence was filed. The costs of the respondent and ICL for the day were reserved. The publication of the judgment under the pseudonym Seaward & MacDuff (No. 4) was approved pursuant to section 121(9)(g) of the *Family Law Act 1975* (Cth).

Orders