FAMILY LAW – APPEAL – LEAVE TO APPEAL – Appeal from orders dismissing the father’s application for recusal, the father’s oral application to file a further contempt application against the mother and the Independent Children’s Lawyer (“ICL”) and against a costs order – Allegations of apprehended bias – Allegations of denial of procedural fairness – Allegations that the dismissal was unjust and unreasonable – Adequacy of reasons – Where the father’s arguments were misconceived – No error established and no any substantial injustice if leave to appeal was refused – Leave to appeal refused – Appeal dismissed – Father ordered to pay the mother’s costs in a fixed sum of $7,500.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where father sought leave to adduce further evidence – Where evidence said to demonstrate the necessity of the contempt application against the mother – Evidence incapable of remedying the deficiencies in the contempt application nor capable of establishing a prima facie case of contempt – Where the evidence would not have affected the outcome of the appeal – Application dismissed.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 2.35, 2.36, 4(1), 6.01, 6.17(a)(ii), 7.13(3)(e), 11.71(2), 11.71(6), 11.71(7)
[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 Wynn & Danilov
Sign in free to access the full text
Details
AGLC
Wynn & Danilov [2023] FedCFamC1A 149
Case
[2023] FedCFamC1A 149
Decision Date
CaseChat Overview and Summary
In the case of Wynn & Danilov, the father sought leave to appeal a decision made by the Family Court of Australia and to present additional evidence during the appeal. The primary judge had dismissed the father's application to disqualify the judge on the grounds of apprehended bias, as well as the father's appeal against an order that set out the terms for the final hearing of parenting and property matters. The father also sought leave to rely on additional evidence, which included an affidavit from a psychologist, and further evidence concerning the mother's alleged contempt of court.
The legal issues before the court were whether the father had identified any grounds for appeal that would permit him to challenge the primary judge's decision and whether the father should be allowed to present additional evidence during the appeal. The court examined the grounds of appeal and the proposed additional evidence to determine if they met the threshold for appeal and if they contained any new information that could affect the outcome of the case.
After considering the father's arguments and the evidence presented, the court found that the father had not identified any appealable error in the primary judge's decision. The grounds of appeal were either misconceived or failed to demonstrate any significant legal error. The proposed additional evidence did not contain any new information that could affect the outcome of the case and was not admissible as it was hearsay. The court concluded that the father's appeal was substantially misconceived and should be dismissed.
The court also considered the costs associated with the appeal. The mother had sought costs in the event the appeal was unsuccessful, and the father argued that his financial circumstances should be taken into account. However, the court found that the father's appeal was substantially misconceived and that there were circumstances justifying an award of costs in the mother's favour. The court ordered the father to pay the mother's costs of the appeal in the amount of $7,500.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
For the reasons which follow the father should not be granted leave to appeal to the extent necessary, or leave to rely upon the proposed additional evidence, and the appeal should otherwise be dismissed.BRIEF BACKGROUND The parties were married in June 2012, and have three children. They separated in June 2019. The respondent mother (“mother”) commenced proceedings under the Family Law Act1975 (Cth) (“the Act”) on 17 December 2019. The final hearing for both the parenting and property proceedings was originally listed to take place on 11 August 2022. However, it did not proceed on that date because counsel for the father had taken ill. The hearing was adjourned to 15 August 2022, but did not proceed, again because counsel remained ill and there had been insufficient time to engage fresh counsel. The final hearing was then adjourned and listed to commence on 6 March 2023 for five days. On 15 August 2022, the Court made an order in the following terms: 3.That no further applications or material are to be filed without the leave of the Court. There was no appeal from this order and remained operative up to and on 7, 8 and 9 March 2023. On 28 February 2023, the father filed an Application-Contempt, alleging the mother was in contempt of Court as follows:The Applicant Mother has not provided full and frank disclosure concerning the Children’s medical and specialist reports since the commencement of these proceedings. On 6 March 2023, the father filed a further Application-Contempt, this time against the Independent Children’s Lawyer (“ICL”) alleging that the ICL was in contempt of Court by failing to provide full and frank disclosure to the expert witness in accordance with r 7.13(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), as follows:The ICL, […] did not provide full and frank disclosure to the Expert Witness. A breach of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.13(3)(e). The breaches occurred on 27 June 2022, 8 April 2022, 18 July 2022, 8 August 2022, and 4 February 2023. My former solicitor […] raised the issue of disclosure to the ICL and the ICL did not reply to his email of 4 February 2023. The Affidavit filed 28 February 2023 addresses the breaches and exhibited emails to confirm the breaches by the ICL in not providing full and frank disclosure to the Expert Witnesses. On 7 March 2023, the father filed another Application in a Proceeding, which sought the following orders:1. The time for hearing this urgent application in a proceeding be abridged.2.The children’s representative […] as independent children’s lawyer for [X] born […] 2013, [Y] born […] 2014 and [Z] born […] 2017 (‘the Children’) be discharged.3.That pursuant to Section 68L of the Family Law Act 1975, the children be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation.4.That [the primary judge] disqualify himself on the ground of apprehended bias.5.The interim order numbered 10 of 15 August 2022 and order 2 varied on 16 February 2023, be varied as follows:a.The matter be adjourned for final hearing to a date no less than 9 months from these orders.6.That the mother and father do all and things necessary to obtain a referral from the children’s treating medical practitioner, under the Medicare Mental Health Scheme, to an appropriately qualified child psychologist to facilitate the children to commence counselling to assist the children with their parents separation and the parenting arrangements until otherwise recommended by the child psychologist, and each parent be permitted to engage with the children’s psychologist and seek feedback or participate in such therapy, if the child psychologist recommends and the child psychology is reportable to the court.7. That each party is authorised to liaise with the children’s schools and medical practitioners, including any specialist, about the children’s ongoing education and health needs and both parties are authorised to receive copies of any documents including, but not limited to, school reports, parent teacher interview notifications, school newsletters, school photograph order forms, special education plans, medical reports and anything involving the attendance of a parent.8. That each parent inform the other as soon as reasonably practicable of any serious illness or hospitalisation of any of the children.9. That the father spends time with the children on an unsupervised basis. The time spent with the children moves to overnight stay each alternate weekend from after school pick up Friday afternoon until Sunday 5 pm and half of the school holidays.10. Any other order the Court deems appropriate.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
We are satisfied the father has not identified any appealable error infecting the costs order. Grounds 2, 3 and 4 fail.CONCLUSION Leave to appeal in respect of the primary judge’s dismissal of the father’s recusal application should be refused. The father’s Application in an Appeal to lead further evidence should be dismissed. The appeal should otherwise be dismissed.COSTS The ICL sought no costs. The mother sought costs in the event the appeal was unsuccessful. The father has been wholly unsuccessful. He argued that the mother’s conduct and that of her solicitors should be taken into account. The primary basis of his argument was that he would not have had to make a contempt application had the mother or her solicitor complied with the disclosure obligations in the first instance. There is some force in his argument that despite the fundamental flaws in his use of the contempt procedure to deal with non-disclosure, ultimately he demonstrated that the mother had failed to disclose the reports of medical specialists concerning the children. They should have been disclosed to the father by the mother satisfying her duty to disclose. Nonetheless the father’s appeal was substantially misconceived. The father claimed that his financial circumstances would preclude him from paying a costs order in the event one was made against him. He further submitted that the Court should have regard to the fact that his initial applications and appeal were brought in the best interests of the children. Neither of those submissions is convincing. There was scant evidence before us about the father’s financial circumstances. He may have believed he was acting in the best interests of his children in alleging contempt of court against the mother and the ICL, but there is objectively no basis to find that their best interests have actually been served by his conduct. We are satisfied there are circumstances justifying an award of costs in the mother’s favour. The mother’s costs schedule specified total costs of $9,242.68. We do not consider that there should be an order in her favour giving full indemnification. It is not in the interests of the parties for there to be a process of assessment and a fixed amount should be ordered. The father should pay the mother’s costs of the appeal fixed in the amount of $7,500.