Balfour & Ferber (No 3) - [2024] FedCFamC1A 227

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Balfour & Ferber (No 3) [2024] FedCFamC1A 227

Appeal from: Balfour & Ferber (No 2) [2024] FedCFamC2F 1162

Appeal number: NAA 225 of 2024

File number: MLC 6089 of 2021

Judgment of: AUSTIN J

Date of judgment: 4 December 2024

Catchwords: FAMILY LAW – APPEAL – Contravention – Parenting – Where the appellant brings an appeal from the dismissal of his contravention application – Where the appellant complains the primary judge denied him procedural fairness by not adjourning the hearing to allow him to address the evidentiary deficiency in his case – Where the appellant did not apply for an adjournment – Where the primary judge had to judge the dispute impartially on the evidence which the parties elected to adduce – Where the appellant fails to explain how the decision was wrongly made – Where the appellant asserts the primary judge did not consider the best interests of the child – Where the best interests of the child were not relevant to the determination of the contravention application – Appeal dismissed – No order as to costs.

Legislation: Family Law Act 1975 (Cth) Pt VII, Divs 13A, 6, ss 60CA, 65AA, 70NAB

Cases cited:
Balfour & Ferber(No 2) [2024] FedCFamC1A 194

Balfour & Ferber [2024] FedCFamC1A 179

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 4 December 2024

Place: Newcastle (via MS Teams)

The Appellant: Litigant in person

The Respondent: Litigant in person

ORDERS

NAA 225 of 2024
MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BALFOUR

Appellant

AND:
MS FERBER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 DECEMBER 2024

THE COURT ORDERS THAT:
1.The appeal is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balfour & Ferber (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This appeal from orders made on 26 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2), dismissing the appellant’s contravention application against the respondent, is dismissed for the following reasons.
Background
Final parenting orders were made between the parties in respect of their child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in October 2022.
Relevantly for present purposes, Order…

Grounds of appeal

[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 Balfour & Ferber (No 3)

Details

AGLC: Balfour & Ferber (No 3) [2024] FedCFamC1A 227
Case: [2024] FedCFamC1A 227
Decision Date: 4 December 2024

CaseChat Overview and Summary

The appeal in Balfour & Ferber (No 3) involves Mr. Balfour, the appellant, and Ms. Ferber, the respondent, in a dispute regarding parenting orders made under the Family Law Act 1975. The central issue in this case was Mr. Balfour's contravention application, which he filed against Ms. Ferber in May 2024, alleging her breach of certain parenting orders. The application was dismissed by the primary judge in August 2024, leading to Mr. Balfour's appeal to the Federal Circuit and Family Court of Australia (Division 1).

The primary legal issue before the court was whether the primary judge erred in dismissing the contravention application. Mr. Balfour argued that the primary judge denied him procedural fairness by not adjourning the hearing to address evidentiary deficiencies. However, it was noted that Mr. Balfour did not apply for an adjournment, and the primary judge had to judge the dispute impartially based on the evidence presented by the parties. Additionally, the court examined whether the primary judge failed to consider the best interests of the child, a point which was deemed irrelevant to the contravention application's determination.

The court found that Mr. Balfour did not adequately explain how the primary judge's decision was incorrect, particularly regarding the evidentiary issues. The court also determined that the primary judge's decision did not improperly overlook the best interests of the child, as this consideration was not pertinent to the contravention application. Consequently, the appeal was dismissed.

The court made a final order dismissing the appeal without making any order as to costs. The form of the order is subject to potential review and correction as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

Orders

Orders of the court

NAA 225 of 2024

MLC 6089 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BALFOUR

Appellant

AND:

MS FERBER

Respondent

ORDER MADE BY:

AUSTIN J

DATE OF ORDER:

4 DECEMBER 2024

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

This appeal from orders made on 26 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2), dismissing the appellant’s contravention application against the respondent, is dismissed for the following reasons.Background Final parenting orders were made between the parties in respect of their child under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in October 2022. Relevantly for present purposes, Order 5(a) provided for the child to communicate with the appellant by telephone each Monday and Thursday at 5.00 pm. In May 2024, the appellant filed a contravention application against the respondent alleging her breach of the orders on 68 occasions. The application came on for hearing before the primary judge in August 2024. The appellant was self-represented at the hearing and elected to proceed with the prosecution of only five counts, which counts all related to Order 5(a), alleging its breach by the respondent on five occasions between late January 2024 and late February 2024 (at [9]–[10]). Specifically, it was alleged the respondent failed to facilitate telephone calls between the child and the appellant without reasonable excuse. As part of the evidence adduced in support of the allegations, the appellant relied upon telephone records produced by the Victorian Department of Justice and Community Safety. The appellant is in custody serving a sentence of imprisonment and on each of the relevant five occasions he unsuccessfully attempted to telephone the child from prison. The prison telephone call records were produced to the appellant in response to his freedom of information application, but they were in redacted form. He tendered them in evidence in that form. The primary judge did not accept the evidence proved the respondent’s contravention of Order 5(a) in relation to each of the five counts, saying this in the reasons for judgment:13.The [appellant] submitted that the only STD phone number he calls is the [respondent’s] number……18.The [appellant] relies on data with respect to telephone call logs which shows several attempted calls between 5:00pm and 5:30pm. According to the phone call logs, those outgoing calls were not answered. The [appellant] cannot establish, based on the evidence before me, that the calls were made to the [respondent’s] phone number. Given this, the respondent has no case to answer. For these reasons, the application must be dismissed. The contravention application was therefore dismissed. The appellant appealed from that dismissal order on 3 September 2024.The appeal The grounds of appeal are as set out in the Notice of Appeal filed on 3 September 2024. Two interlocutory applications have already been decided. The appellant was relieved of the obligation to file the transcript of the hearing before the primary judge (Balfour & Ferber [2024] FedCFamC1A 179) but was denied leave to issue a subpoena and to adduce further evidence in the appeal (Balfour & Ferber(No 2) [2024] FedCFamC1A 194).Ground 2

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Appeal from:		Balfour & Ferber (No 2) [2024] FedCFamC2F 1162
Appeal number:		NAA 225 of 2024
File number:	MLC 6089 of 2021
Judgment of:	AUSTIN J
Date of judgment:	4 December 2024
Catchwords:	FAMILY LAW – APPEAL – Contravention – Parenting – Where the appellant brings an appeal from the dismissal of his contravention application – Where the appellant complains the primary judge denied him procedural fairness by not adjourning the hearing to allow him to address the evidentiary deficiency in his case – Where the appellant did not apply for an adjournment – Where the primary judge had to judge the dispute impartially on the evidence which the parties elected to adduce – Where the appellant fails to explain how the decision was wrongly made – Where the appellant asserts the primary judge did not consider the best interests of the child – Where the best interests of the child were not relevant to the determination of the contravention application – Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) Pt VII, Divs 13A, 6, ss 60CA, 65AA, 70NAB
Cases cited:	Balfour & Ferber(No 2) [2024] FedCFamC1A 194 Balfour & Ferber [2024] FedCFamC1A 179 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Division:	Division 1 First Instance
Number of paragraphs:	27
Date of hearing:	4 December 2024
Place:	Newcastle (via MS Teams)
The Appellant:		Litigant in person
The Respondent:		Litigant in person

NAA 225 of 2024 MLC 6089 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BALFOUR Appellant
AND:	MS FERBER Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	4 DECEMBER 2024