FAMILY LAW – APPEAL – APPREHENDED BIAS – Where the father submitted that the primary judge’s orders and reasons gave rise to an apprehension of bias and an apprehension that he prejudged the issues before him – Where the matter was initially considered ex parte – Where the father filed documents after ex parte orders were made – Where his Honour raised issues regarding the father’s citizenship and welfare entitlement that were not raised by the parties – Where the primary judge identified the appropriate law which did not suggest wrongdoing – Where the primary judge referred the matter to the Department of Immigration and Citizenship without informing the father’s counsel of this intention – Statements made by primary judge – Where objection to constitution of the court not taken – Waiver – Whether subsequent delivery of reasons revive bias – Whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Where a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Appeal allowed.
FAMILY LAW – APPEAL – FORUM – Appropriate forum –Where the children were residents of Lebanon – Whether the doctrine of forum non conveniens is applicable to a parenting case – Where an application is made under the provisions of the Act, which prescribes the best interests test, whether or not a child is within the jurisdiction then it is that test and not the test of forum non conveniens which will apply – Appeal allowed.
FAMILY LAW – APPEAL – INJUNCTIONS – Jurisdiction – Where the father was restrained from leaving Australia – Whether the court has the power to directly restrain the freedom of movement of a parent – Whether the power can be found in s 114(3) or 68B – Where an order requiring a parent to live in a particular place is not a parenting order – Where 68B cannot restrict the movement of a parent – Where the court has discretion under s 114(3) to restrain the movement of a parent – Where exercise of the discretion requires the correct source of power to be identified – Appeal allowed.
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996
[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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AGLC
Zanda & Zanda [2014] FamCAFC 173
Case
[2014] FamCAFC 173
Decision Date
CaseChat Overview and Summary
The appeal, Zanda & Zanda, involved a dispute between parents over the custody and care of their children. The father, Mr. Zanda, appealed against several orders made by Judge Harman in the Federal Circuit Court of Australia. The legal issues before the court included whether the primary judge’s orders and reasons gave rise to an apprehension of bias, and whether the doctrine of forum non conveniens applied to the case.
The court examined the father's claim of apprehended bias against the primary judge, focusing on whether the judge's actions suggested an unfair predisposition towards the father. The court considered the judge's handling of the ex parte application, his introduction of citizenship and welfare entitlement issues without prior notice to the father, and his referral to the Department of Immigration and Citizenship. Despite these concerns, the court found that the primary judge correctly identified and applied the relevant law. The court held that the father's apprehension of bias was not substantiated because the judge's actions did not indicate a failure to bring an impartial and unprejudiced mind to the case. However, the court noted that the primary judge's statements could reasonably be seen as creating an apprehension of bias for a fair-minded lay observer.
The court also addressed the issue of the appropriate forum for the case, particularly considering that the children were residents of Lebanon. The court concluded that the best interests test under the Family Law Act should apply regardless of the children's location, and thus, the doctrine of forum non conveniens was not applicable. The court allowed the appeal regarding the forum issue and set aside the orders that were based on an inappropriate application of the forum non conveniens doctrine.
In its orders, the court allowed the father's appeal in part, setting aside specific orders made by Judge Harman. The court restrained the father from leaving Australia pending further orders and directed the Australian Federal Police to enforce this restraint. The court also set aside other orders and remitted the matter for a hearing before a different judge. Additionally, the court granted costs certificates to both parties in relation to the appeal and the rehearing of the application.
Orders
Orders of the court
Orders Made 17 July 2014
1.
The appeal EA79 of 2014 be allowed in relation to orders 9 and 10 made by Judge Harman on 2 July 2014.
2.
Orders 9 and 10 made by Judge Harman on 2 July 2014 be set aside.
Orders Made on 15 September 2014
1.
The appeal EA 80 of 2014 against order 2 made by Judge Harman on 28 April 2014 be allowed, and subject to order 2 of these orders, order 2 of those orders be set aside.
2.
Pending further order, there be an order in the same terms as order 2 of the orders made by Judge Harman on 28 April 2014 that:
2. That until further Order the respondent father [Mr Zanda] be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.
3.
The appeal EA 79 of 2014 against orders made by Judge Harman on 2 July 2014 be allowed in relation to orders 2, 3, 4, 5, 8 and 16(b), and those orders be set aside.
4.
The matter is remitted for hearing before a judge of the Federal Circuit Court other than Judge Harman.
5.
That the Court grants to the appellant father a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
6.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
7.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.