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Father Appeals Final Parenting Orders

Kantor & Jeong (No 2) [2022] FedCFamC1A 61 (12 May 2022)

Mr Kantor (“the father”) appeals from final parenting orders made by the primary judge on 8 September 2021 in proceedings between him and Ms Jeong (“the mother”) relating to their four children.  The appealed orders provide for the children to primarily live with the mother, and to spend time with the father for four nights per fortnight during school terms, and half of the school holidays.  The Court, in resolving this dispute, considered the best interests of the children.

Facts:

The parties formed their relationship in 2005, commenced cohabitation in 2008 and were married later that year.  They finally separated in July 2018.  After separation, the parties were able to agree on the parenting arrangements for the children, which saw them live primarily with the mother and spend ad hoc time with the father.  On 30 January 2019, the mother commenced these proceedings.  Subsequently, various interim orders were made and a family report and psychiatric report in relation to the mother were completed.

As a result of the current interim orders at the time, the children lived with the mother, with the older two children spending time with the father four nights per fortnight and the younger two children two nights per fortnight.  

The father’s proposal at trial was for the children to live with him and, subject to them being “safe” in the mother’s care, to spend equal time with each parent.  The mother sought orders that the children live with her and spend each alternate weekend with the father, being a reduction of the children’s time with him that was occurring at the time.  The primary judge ultimately made orders for equal shared parental responsibility, for a continuation of the current arrangements for the children’s time with the father (four nights per fortnight, albeit that applied to all four children under the final orders), and for half school holiday time together with some ancillary parenting orders.

The father filed his original Notice of Appeal on 6 October 2021.  Consequently on 3 November 2021, Austin J made orders striking out the grounds of appeal and allowing the father a short time frame to file an Amended Notice of Appeal pleading competent grounds, in the absence of which his appeal would be summarily dismissed.  On 1 December 2021, the father filed an Amended Notice of Appeal.  The father claims  that he was denied procedural fairness and natural justice by the primary judge who was likewise tainted with bias. 

Issue:

Whether or not the primary judge denied the father procedural fairness and/or natural justice.  

Applicable law:

Family Law Act 1975 (Cth) s 60CC - pursuant to which his Honour addressed the relevant factors relating to the children’s best interests.

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337[2000] HCA 63 - provides that the inquiry into an apprehension of bias requires two steps: first, the identification of what it is said might lead the judge to decide a case other than on its legal and factual matters, and secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits.
 
Gronow v Gronow (1979) 144 CLR 513[1979] HCA 63 - provides that “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”.
 
House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that the primary judgment is presumed to be correct unless it can be established that the discretion of the primary judge miscarried.
 
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 - provides that the test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
 
Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2[1989] VR 8 - provides that the adequacy of the reasons will depend upon the circumstances of the case.

Analysis:

The father was permitted to file and rely upon two affidavits of himself, one affidavit of his adult son, to cross-examine witnesses, to tender subpoenaed material which became exhibits in the trial, and was allowed to make submissions regarding the case.  It is clear from the transcript that the father agitated for his adult son to “speak to” certain evidence contained in the family report, and to other issues about his relationship with the mother.  The primary judge denied this course and correctly stated that the witness should have included that evidence in his affidavit, and to allow further oral evidence without notice to the mother would be a denial of procedural fairness to her.  The primary judge was critical of the father not standing behind his submissions which sought to disparage the Court and the mother’s lawyers, however, contrary to the father's assertion, that is quite distinct from directly calling the father a coward.

The father has failed to demonstrate the logical connection between his Honour’s comments and the feared deviation of his Honour deciding the case on its merits.  The father does not clearly identify which part of the evidence he asserts the primary judge failed to consider, although in oral submissions he referred to some material he tendered on the last day of trial.   It is clear from his Honour’s reasons that he considered the expert’s opinion of the mother’s mental state in the psychiatric report.  The primary judge did not accept all of the factual matters contended for by the father, and thus as the expert himself said, his Honour was not obliged to give those recommendations which were adverse to the mother any substantial weight.

Conclusion:

The Court concluded that no ground is established.  The Court dismissed the appeal.  No order is made as to costs. 

 

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