FAMILY LAW – Courts and Judges - Next Friend - The distinction between the role of a next friend and that of a “McKenzie friend”. McKenzie v McKenzie [1970] 3 All E.R 1034; Collier v Hicks (1831) 2 B & Ad. 663; KT v KJ & TH (2000) FLC 93-032 and Randall v Randall (1939) P. 131 discussed.

JUDICIAL NOTICE - Whether the Court can take judicial notice of an order made in other proceedings between other parties. Mullen v Hackney London Borough Council [1997] 2 All E.R. 906 discussed and applied.

NEXT FRIEND – Whether it is a relevant matter to be taken into account, in determining an application for the appointment of a next friend, that the person whose appointment is sought is himself/herself the subject of an order under s.118 of the FLA in other proceedings to which he or she is a party. MG v MG (2000) FLC 93-034 discussed and applied; KT v KJ & TH (2000) FLC 93-032 discussed.

On 3 September, 2001, the father filed a Notice of Appeal against the orders made by Federal Magistrate Coker on 3 August, 2001, which related to contact between the father and the four children of his marriage to the mother. In the proceedings before the Federal Magistrate the father appeared on his own behalf.

Then, on 22 October, 2001, the father filed an application seeking an order that Mr F be appointed as his next friend for the purposes of the appeal. This was a role that Mr F consented to fulfilling.

That application was opposed by the solicitor for the mother, and the children’s representative, both of whom submitted that the father was not in need of a next friend and, in the event that he was, Mr F was not a fit and proper person to fulfil that role. The solicitor for the mother submitted that Mr F had his own issues in relation to the Family Court jurisdiction which, she submitted, “would not enable him to perform his role of next friend properly”. In support of that submission the solicitor referred to and relied upon both Mr F’s affidavits, which extensively detailed his experience with the Family Court in his matrimonial proceedings, and his correspondence with the Children’s Representative.

The father relied on a doctor’s report which specified that he suffered from: “bilateral hearing loss” of unspecified degree; “chronic back pain…

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

AGLC: Watson & Watson [2001] FamCA 1470
Case: [2001] FamCA 1470
Decision Date: 20 DECEMBER, 2001

CaseChat Overview and Summary

In the Family Court of Australia, Justice Lindenmayer considered an application for the appointment of a next friend in proceedings between Watson & Watson. The core of the dispute concerned the suitability of the proposed next friend, who was also involved in separate proceedings under section 118 of the *Family Law Act 1975* (Cth).

The court was required to determine two primary legal issues. Firstly, it had to consider the distinction between the role of a next friend and that of a "McKenzie friend," drawing upon established authorities such as *McKenzie v McKenzie*, *Collier v Hicks*, *KT v KJ & TH*, and *Randall v Randall*. Secondly, the court had to decide whether it could take judicial notice of an order made in unrelated proceedings between different parties, referencing *Mullen v Hackney London Borough Council*. A further key issue was whether the existence of an order against the proposed next friend under section 118 of the *Family Law Act 1975* in other proceedings was a relevant factor in determining their application to act as a next friend, with reference to *MG v MG* and *KT v KJ & TH*.

Justice Lindenmayer reasoned that the role of a next friend is distinct from that of a McKenzie friend, with the former having a more formal and responsible position in litigation. The court affirmed its power to take judicial notice of orders made in other proceedings, provided they are relevant to the matter at hand. Crucially, the court held that an order made against a proposed next friend under section 118 of the *Family Law Act 1975* in separate proceedings was a highly relevant consideration when assessing their suitability to act as a next friend, as it could impact their capacity to fulfil that role effectively and impartially. The court ultimately made orders regarding the appointment of a next friend.

Orders