COOPERS & EAGLES

[2010] FamCAFC 234

FAMILY COURT OF AUSTRALIA

COOPERS & EAGLES [2010] FamCAFC 234

FAMILY LAW - APPEAL – Ruling on evidence – Where the application to rely on further evidence for the determination of the appeal was not opposed – Evidentiary rulings of the Federal Magistrate to be set aside – Matter remitted for rehearing before another Federal Magistrate – Appeal allowed by consent

FAMILY LAW - COSTS – Further affidavit material allowed to be filed – Written submissions as to costs to follow

Family Law Act 1975 (Cth)

APPELLANT: Ms Coopers

RESPONDENT: Mr Eagles

FILE NUMBER: BRC 5388 of 2009

APPEAL NUMBER: NA 88 of 2010

DATE DELIVERED: 15 November 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: May J

HEARING DATE: 15 November 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 1 July 2010

LOWER COURT MNC: [2010] FMCAfam 736

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Linklater-Steele

SOLICITOR FOR THE APPELLANT: Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT: Mr Carlton

SOLICITOR FOR THE RESPONDENT: Burchill & Horsey Lawyers

Orders

BY CONSENT IT IS ORDERED:-

1. The appeal be allowed.

2. The application of the appellant to rely upon further evidence for the purpose of determining the appeal is not opposed.

3. The appeal record shall include the Affidavits of Ms H filed 1 November 2010 and Ms R filed 1 November 2010.

4. The evidentiary rulings of the Learned Federal Magistrate made on 1 July 2010 (in respect of Federal Magistrates Court File No. BRC 5388/09), be set aside; and

5. The matter be remitted for hearing before a Federal Magistrate other than Federal Magistrate Coates.

FURTHER, IT IS ORDERED:-

1. The appellant and respondent file any affidavit upon which they wish to rely in relation to costs of the appeal within 7 days of today.

2. Upon such affidavits being filed the appellant have 14 days to file any written submissions and the respondent 14 days after receipt of the appellant’s submissions.

3. Such affidavits and submissions be dated and filed in the Appeal Registry Brisbane.

IT IS NOTED that publication of this judgment under the pseudonym Coopers & Eagles is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 88 of 2010
File Number: BRC 5388 of 2009

Ms Coopers

Appellant

And

Mr Eagles

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Federal Magistrates Court concern parenting arrangements for a child, M Eagles, born in May 2008.

2. The appeal to this court, concerns orders made by Federal Magistrate Coates in relation to evidence proposed to be called in the mother’s case. Ms H, the father’s former wife, had not sworn an affidavit and had been subpoenaed to give some evidence.

3. The difficulty that arose at trial is described in paragraph 8 of the reasons for judgment:

   8.Objection is taken to the [proposed] evidence on the basis that it is “ambush” and on the basis that, pursuant to the orders made by Spelleken FM, a summary of the witness’s evidence has not been supplied to the father’s legal advisors and the timing of Spelleken FMs orders have not been complied with.

4. It was submitted, in this appeal, which is from the decision in relation to the evidence, that the Federal Magistrate made evidentiary rulings at the commencement of the trial which considerably compromised the trial process. It was submitted that the decisions of the trial judge impeded the case being determined as required.

5. This morning counsel informed me that the appeal is settled in the sense that it is agreed that the appeal should be allowed and that the applicant should be allowed to rely on the further evidence for the purpose of determining this appeal.

6. It is also agreed that the further hearing of the matter should be before a different Federal Magistrate.

Costs

1. It was agreed that each party, that is the appellant and respondent, should file any affidavit upon which they wish to rely in relation to the issue of costs within seven days.

2. The appellant is to file their submissions as to costs within fourteen days from today. The respondent is to file their submissions within fourteen days after receipt of the appellant’s submissions.

3. Each of those submissions can be filed with the Appeal Registrar, dated the date they were served on the other party.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 15 November 2010.

Associate: 

Date:  19 November 2010