Barnaby & Schimmell - [2008] FamCAFC 182

FAMILY COURT OF AUSTRALIA

BARNABY & SCHIMMELL

[2008] FamCAFC 182

FAMILY LAW – APPEALS – from decision of Federal Magistrate – DISSOLUTION OF MARRIAGE - APPLICATION FOR RECISSION OF DECREE NISI - Objection to jurisdiction/forum non inconveniens - Divorce proceedings commenced in another jurisdiction prior to proceedings in Australia - Errors of fact and law

FAMILY LAW - LITIGANTS IN PERSON - Requirements of Natural Justice and Procedural Fairness

FAMILY LAW - ADJOURNMENT APPLICATION - Inadequate and Insufficient Reasons or Failure to Give Reasons - s98A(1) Family Law Act 1975

House v The King (1936) 55 CLR 499

Pettitt v Dunkley (1971) 1 NSWLR 376

Taylor v Taylor (1979) FLC ¶90-674

Bennett v Bennett (1991) FLC ¶91-191

Graham v Graham (1991) FLC ¶92-243

Re F (Litigants in Person Guidelines) (2001) FLC ¶93-072

Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246

Corporate Affairs Commission v Transphere Pty Ltd (No 5) [2917/84] (unreported) Supreme Court of New South Wales 13 November 1987, per Young J

Evans v Bartlam [1937] AC 473 at 487

Maxwell v Keun [1928] 1 KB 645

Hinckley and South Leicestershire Permanent Benefit Building Society v Freeman [1941] Ch 32

F and C [2005] FamCA 573

Brittingham v Williams [1932] VLR 237

Hawkins v James [400041/90] (Unreported, New South Wales Court of Appeal, 13 February 1990)

APPELLANT:

Ms Barnaby

RESPONDENT:

Mr Schimmell

FILE NUMBER:

SYM 7986 of 2004

APPEAL NUMBER:

EA 55 of 2005

DATE DELIVERED:

27 November 2008

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ, Warnick and May JJ

HEARING DATE:

28 October 2005

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 April 2005

LOWER COURT MNC:

[2005] FMCAfam 417

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney

SOLICITOR FOR THE APPELLANT:

Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT:

Mr Livingstone

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg and Co

Orders

That the appeal be allowed.
The decree nisi granted on 22 April 2005 be rescinded.
That the husband’s Application for Divorce be remitted for re-hearing before the Federal Magistrates’ Court following the publication by the Full Court of reasons for their Orders.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions…

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 Barnaby & Schimmell

Details

AGLC: Barnaby & Schimmell [2008] FamCAFC 182
Case: [2008] FamCAFC 182
Decision Date: 27 November 2008

CaseChat Overview and Summary

In the matter of Barnaby & Schimmell, the Full Court of the Family Court of Australia considered an appeal against a decree nisi granted by a Federal Magistrate. The appellant, Schimmell, objected to the jurisdiction of the Australian court on the basis that divorce proceedings had already been initiated in another jurisdiction. Schimmell also raised issues concerning procedural fairness, given that both parties represented themselves in the original proceedings, and argued there were errors of fact and law in the decision of the Federal Magistrate. Additionally, Schimmell contested the adequacy of reasons provided for the adjournment of the proceedings.

The legal issues before the court involved determining whether the Australian court had jurisdiction to hear the divorce application, given the prior proceedings in another jurisdiction. The court also needed to assess whether there were errors in the application of procedural fairness principles and whether the Federal Magistrate's decision contained adequate reasons in accordance with section 98A(1) of the Family Law Act 1975. Moreover, the court had to consider whether the decision was based on factual and legal errors.

The Full Court found that the Federal Magistrate had erred in exercising jurisdiction over the divorce application, as proceedings had already been initiated in another jurisdiction. The court emphasised that where concurrent proceedings are underway, the doctrine of forum non conveniens may apply, suggesting that the Australian court was not the appropriate forum. Furthermore, the court identified deficiencies in procedural fairness, particularly concerning the handling of unrepresented parties, and noted that the reasons provided for the adjournment were inadequate. Based on these findings, the Full Court allowed the appeal, rescinded the decree nisi, and remitted the husband's application for divorce to the Federal Magistrates’ Court for re-hearing. The court also issued costs certificates under the Federal Proceedings (Costs) Act 1981 for both parties, reflecting the appropriate allocation of costs for the appeal and any subsequent proceedings.

Orders

Orders of the court

That the appeal be allowed.

The decree nisi granted on 22 April 2005 be rescinded.

That the husband’s Application for Divorce be remitted for re-hearing before the Federal Magistrates’ Court following the publication by the Full Court of reasons for their Orders.

That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the appellant wife in relation to the appeal.

That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.

That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

Background

Background to the litigation

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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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