FAMILY COURT OF AUSTRALIA
| ALLEN & GREEN | [2010] FamCAFC 14 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – PROCEDURAL FAIRNESS – Whether the Federal Magistrate erred in relying on material not tendered in the proceedings – Where the material was not “common knowledge” under s 144 of the Evidence Act 1995 (Cth) – Where the parties’ attention was not drawn to the material – Where the Federal Magistrate had the benefit of reports and oral evidence of the single expert – Where the Federal Magistrate’s treatment of the material was not background to the issue to be determined – Where the father did not have the opportunity to address the material – Appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to provide adequate reasons as to why the father’s time with the younger child was reduced – Whether the Federal Magistrate erred in failing to provide adequate reasons for the finding that the children were not coping with the overnight time spent with the father – Where the reasons were delivered ex tempore – Where the Federal Magistrate set out each of the relevant s 60CC factors – Where the Federal Magistrate carefully recorded the evidence of both parties – Whether the Federal Magistrate erred in failing to provide adequate reasons for departure from recommendations from the expert – Whether the Federal Magistrate erred in failing to accord adequate weight to the evidence of the expert – Where the parties’ evidence was untested – Where the expert’s opinion required careful consideration – Where the Federal Magistrate’s reasoning was influenced in part by her reliance on the material – Where the Federal Magistrate’s reasons may technically be considered inadequate because of flawed reliance on material – Where there was dispute as to the extent of the children’s anxiety – Appealable error established. FAMILY LAW - APPEAL – PARENTING ORDERS – INTERIM ORDERS – Whether the Federal Magistrate erred in failing to give “real meaning’ to the intent of s 65DAA(2) of the Family Law Act 1975 – Where there was no challenge to the mother retaining sole parental responsibility – Where the parties had narrowly defined the issue to be determined by the Federal Magistrate – Where the Federal Magistrate identified the parties’ proposal and issues in dispute – Where the Federal Magistrate’s orders provided for the father to spend substantial and significant time with the children – No appealable error. FAMILY LAW - COSTS – Where both parties sought costs certificates – Where appropriate for parties for be grated certificates for the appeal and any re-hearing – Costs certificates granted. |
| Evidence Act 1995 (Cth) – s 144 Family Law Act 1975 (Cth) – s 60CC, s 65DAA Federal Proceedings (Costs) Act 1981 (Cth) |
| AMS v AIF (1999) 199 CLR 160 |
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Details
- AGLC
- Allen and Green [2010] FamCAFC 14
- Case
- [2010] FamCAFC 14
- Decision Date
CaseChat Overview and Summary
The case of Allen and Green involved a dispute between the parties regarding the application of spousal maintenance in a divorce proceeding. The Federal Magistrate had previously ruled on the matter, but the decision was appealed and ultimately reached the court. The primary issue before the court was whether the Federal Magistrate correctly applied judicial notice to social science research when determining spousal maintenance. The court needed to decide if the research could be considered as evidence in the particular case or merely as background information.
The court agreed with the proposition that there are advantages to taking judicial notice of research concerning the economic consequences of marriage and its dissolution. However, it also acknowledged the need for caution, ensuring that such research does not substitute for evidence specific to the case at hand. The court endorsed the approach in Patsalou and Patsalou, where the Full Court approved the trial Judge's reference to relevant literature as a form of background information. The court recommended that a similar approach be taken in spousal maintenance cases, where judicial notice of the research is used to construe the evidence presented.
The appeal was allowed, and the orders of the Federal Magistrate were set aside, with the case being remitted for rehearing in the Federal Magistrates Court. The court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing for potential payments by the Attorney-General for costs incurred during the appeal and the new trial.
The court agreed with the proposition that there are advantages to taking judicial notice of research concerning the economic consequences of marriage and its dissolution. However, it also acknowledged the need for caution, ensuring that such research does not substitute for evidence specific to the case at hand. The court endorsed the approach in Patsalou and Patsalou, where the Full Court approved the trial Judge's reference to relevant literature as a form of background information. The court recommended that a similar approach be taken in spousal maintenance cases, where judicial notice of the research is used to construe the evidence presented.
The appeal was allowed, and the orders of the Federal Magistrate were set aside, with the case being remitted for rehearing in the Federal Magistrates Court. The court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing for potential payments by the Attorney-General for costs incurred during the appeal and the new trial.
Orders
Orders of the court
1.
The appeal is allowed.
2.
Subject to Order 3 of these orders, Orders 9 and 11 of the orders of Federal Magistrate Sexton made 15 April 2009 be set aside.
3.
Order 2 hereof be stayed until the matter is relisted before a Federal Magistrate.
4.
The matter is remitted for rehearing in the Federal Magistrates Court, Sydney Registry.
5.
The Court grants to the appellant father a costs certificate pursuant to 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.
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.
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 them in relation to the new trial ordered.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Counsel for the mother sought to rely on the statements in Mitchell & Mitchell (1995) FLC 92-601 at 81,996 as justifying the approach adopted by the Federal Magistrate. In Mitchell (where the issue was whether the wife’s spousal maintenance application had been incorrectly dismissed by the trial Judge) the Full Court referring to a Canadian decision said: The majority judgment delivered by L’Heureux-Dube J recorded a range of studies and commentaries concerning the general economic impact of divorce upon women. Her Honour said at 393-4:—‘Based upon the studies which I have cited earlier in these reasons, the general economic impact of divorce on women is a phenomenon, the existence of which cannot reasonably be questioned and should be amenable to judicial notice. More extensive social science data are also appearing. Such studies are beginning to provide reasonable assessments of some of the disadvantages incurred and advantages conferred post-divorce (see, for example, the study by Kerr [ An Economic Model to Assist in the Determination of Spousal Support, Paper prepared for the Department of Justice and Status of Women Canada, 1992]). While quantification will remain difficult and fact- related in each particular case, judicial notice should be taken of such studies, subject to other expert evidence which may bear on them, as background information at the very least.(...)In all events, whether judicial notice of the circumstances generally encountered by spouses at the dissolution of marriage is to be part of the trial process or whether such circumstances merely provide the necessary background information, it is important that judges be aware of the social reality in which support decisions are experienced when engaging in the examination of the objectives of the Act.’We agree with these general propositions. Like Canada, Australia has a body of research indicating that mothers who are the primary carers of dependent children inevitably drop out of the paid work-force and consequently suffer financial deprivation which is exacerbated by marriage breakdown: see the Australian Institute of Family Studies publications, McDonald (Ed.) (1986) Settling Up: Property and Income Distribution on Divorce in Australia; Funder Harrison and Weston (1993) Settling Down: Pathways of Parents After Divorce. In our view there are significant advantages to the Court being able to take judicial notice of research concerning the economic consequence of marriage and its dissolution.We also agree with the caution contained in Moge against judicial notice being perceived as a substitute for evidence in the particular case. In this regard, we note that in Patsalou and Patsalou (1995) FLC ¶92-580; 18 Fam LR 426, the Full Court approved of the trial Judge making reference in her reasons for judgment to relevant literature — in that case, on the subject of the effect of inter-spousal violence upon children. The Full Court rejected a complaint that the parties should have been invited to make submissions on this body of research. As we see it, the trial Judge in that case effectively took judicial notice of the research as a form of “background information” within which to then construe the evidence on the record. We recommend a similar approach in spousal maintenance cases. (my emphasis)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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