Doherty & Doherty - [2014] FamCAFC 20

FAMILY COURT OF AUSTRALIA

DOHERTY & DOHERTY

[2014] FamCAFC 20

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – family violence – Whether the trial judge failed to have any or any proper regard to the provisions of sections 61D and 65DAC of the Family Law Act – Whether the trial judge failed to give any or any adequate reasons for the orders made by her – Whether the trial judge orders are inconsistent with the findings made by her as to the relationship between the parties and the best interests of the child – where the appeal is dismissed.

FAMILY LAW – APPEAL – Delay – where there was delay in delivering judgment – Whether the trial judge should have invited further submissions from either party on any changed circumstances before delivering judgment – where the appeal is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Self represented litigants – assistance from the bench – Whether the trial judge failed to provide to the appellant notice of his right to cross examine – where the appeal is dismissed.

FAMILY LAW – COSTS – where a party was wholly unsuccessful – where the unsuccessful party is to pay costs of and incidental to the appeal.

Family Law Act 1975 (Cth): ss 61D, 65DAC, 65DAA, 69ZN(6)

Evidence Act 1995 (Cth)

R v Alexander and Taylor [1975] VicRp 74; [1975] VR 741
Weston & Laurent [2013] FamCAFC 34
Stead v State Government Insurance Commission (1986) 161 CLR
Jones v National Coal Board [1957] 2 QB 55
Rollings & Rollings (2009) 230 FLR 396
McCrossen & McCrossen (2006) FLC 93-283
Weston & Laurent [2013] FamCAFC 34

APPELLANT:

Mr Doherty

RESPONDENT:

Ms Doherty

FILE NUMBER:

BRC

5443

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

19 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Murphy & Tree JJ

HEARING DATE:

18 September 2013

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

14 December 2012

LOWER COURT MNC:

[2012] FMCAfam 1365

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Brasch

SOLICITOR FOR THE APPELLANT:

HopgoodGanim Lawyers

COUNSEL FOR THE RESPONDENT:

Ms J E Farr

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

Orders

The appeal against the orders of Federal Magistrate Demack (as she then was) made on 14 December 2012 be dismissed.
The father pay the mother’s costs of and incidental to the appeal. Such costs to be agreed or assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doherty & Doherty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 2 of 2013
File Number: BRC 5443 of 2008

Mr Doherty

Appellant

and

Ms Doherty

Respondent

REASONS FOR JUDGMENT

Mr Doherty (“the father”) appeals parenting orders made in the Federal Magistrates Court by Federal Magistrate Demack (as she then was) on

14 December 2012 in…

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 Doherty & Doherty

Details

AGLC: Doherty & Doherty [2014] FamCAFC 20
Case: [2014] FamCAFC 20
Decision Date

CaseChat Overview and Summary

The Full Court of the Family Court of Australia dismissed the appeal of Mr Doherty against the orders of the Federal Circuit Court in relation to parenting arrangements for his child. The appeal raised issues of inconsistency in orders, timing of the decision, and procedural fairness. The Court found that the orders were consistent, that the delay did not affect the outcome, and that the procedural fairness was not compromised. The Court also ordered that Mr Doherty pay the mother's costs of the appeal. The Court considered the evidence and reasons of the trial judge and found no error in her decision. The Court emphasized the importance of the child's best interests and the need for meaningful relationships with both parents.

Orders