Duarte & Morse

Case [2022] FedCFamC1A 66

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Duarte & Morse [2022] FedCFamC1A 66

Appeal from: Morse & Duarte [2021] FedCFamC1F 273
Appeal number(s): NAA 85 of 2021
File number(s): SYC 737 of 2014
Judgment of: AUSTIN, WILLIAMS & CHRISTIE JJ
Date of judgment: 18 May 2022
Catchwords: FAMILY LAW – APPEAL – Parenting – Where an appeal is brought from the dismissal of the appellant’s contravention application – Notice of Constitutional Matter – Where the appellant asserts the invalidity of parenting orders made in 2017 and s 8 of the Federal Circuit and Family Court of Australia Act (Cth) – Where the appeal does not lie from the 2017 orders – Where no statutory invalidity is demonstrated – Bias – Where giving judgment adverse to the interests of a party does not mean the judgment was tainted by bias – Procedural fairness – Where not every departure from the rules of natural justice entitles the aggrieved party to a new hearing – Error of law – Where parenting orders only dictate the manner in which children should spend time with a parent, but do not conscript parents – Error established – Re-hearing – Application Contravention – Where the appellant alleges four contraventions – Where the contraventions are not made out – Where on re-hearing the same result is reached by a different route – Appeal dismissed – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 64B, 70NBA

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 5, Pt 2, Item 7

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 8, 9

Judiciary Act 1903 (Cth) s 78B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.13

Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

B & B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Duarte and Anor & Morse (2019) FLC 93-902; [2019] FamCAFC 93

Duarte & Anor v Morse [2019] HCASL 275

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Mena & Mena and Anor [2016] FamCAFC 85

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Nevins & Urwin [2022] FedCFamC1A 57

R v Richards & Bijkerk (1999) 107 A Crim R 318; [1999] NSWCCA 114

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

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AGLC
Duarte & Morse [2022] FedCFamC1A 66
Case
[2022] FedCFamC1A 66
Decision Date

CaseChat Overview and Summary

In Duarte & Morse, the appellant, Ms Duarte, appealed against the dismissal of her contravention application. The primary matter arose from parenting orders made in 2017, which the appellant sought to have declared invalid. The appeal was brought in the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction. The appellant contended that the 2017 orders were invalid under section 8 of the Federal Circuit and Family Court of Australia Act (Cth). Additionally, she argued that the primary judge was biased and that procedural fairness was breached.

The court examined whether the appeal was valid, whether the 2017 orders were invalid, and whether there was bias or procedural unfairness. The court noted that the appeal did not lie from the 2017 orders as they were not subject to appeal. Furthermore, no statutory invalidity was demonstrated, and the court held that giving judgment adverse to the appellant's interests did not mean the judgment was tainted by bias. The court also determined that not every departure from the rules of natural justice entitled the aggrieved party to a new hearing. However, the court found an error of law in that the parenting orders only dictated the manner in which the children should spend time with the respondent but did not conscript parents.

The court dismissed the appeal, affirmed the order of the primary judge, and dismissed the notice of appeal. The court held that on re-hearing the same result was reached by a different route, and the appellant's allegations of contravention were not made out. The court made no order as to costs.

Orders

Orders of the court

NAA 85 of 2021

SYC 737 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DUARTE

Appellant

AND:

MR MORSE

Respondent

ORDER MADE BY:

AUSTIN, WILLIAMS & CHRISTIE JJ

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 20 April 2022 is granted.

2. The order made by the primary judge on 25 November 2021 is affirmed.

3. The Notice of Appeal filed on 15 December 2021 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

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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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