Saturday, 28 March 2009

Family Court: delay from trial to judgment is not ground of appeal in itself

In the case of Nardello and Fillmore, a ground of appeal was that in a children's matter there was a delay from trial to judgment of 10 months. There was no transcript of the trial.

The mother relied upon the delay, in itself, as being a basis of appeal. While the Full Court did not accept this, it did accept in ordering a retrial that delay played a part in consideration of the impact on the children of being moved from one household to the other.

The court cited authorities dealing with delay, this passage from a NSW Court of Appeal judgment being particularly pertinent:

Where there has been significant delay, there can be no assumptions that
statements of a general assertive character made by the judge are based on a
sufficient consideration of the evidence, or that evidence relevant to a
particular finding not considered in the judgment has not been overlooked by the
judge in making that finding where that evidence, if accepted, could have
supported a different finding....

And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.

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