FALERO & HOLME - [2020] FamCAFC 107

FAMILY COURT OF AUSTRALIA

FALERO & HOLME

[2020] FamCAFC 107

FAMILY LAW – APPEAL – PARENTING – Where the father appeals on grounds that the primary judge failed to provide adequate reasons, properly consider evidence and made errors of fact – No material factual error demonstrated – Inadequacy of reasons for particular orders – Appeal allowed in part – Matter remitted – Costs certificates ordered in favour of the appellant.

Family Law Act 1975 (Cth) s 60CC
Federal Proceedings (Costs) Act 1981 (Cth) s 8 and s 9

Hague Convention on the Civil Aspects of International Child Abduction

A v J (1995) FLC 92-619; [1995] FamCA 56
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499; [1936] HCA 40
Palmer v Clarke (1989) 19 NSWLR 158
Spencer v Bamber [2012] NSWCA 274
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Todorovic v Moussa (2001) 53 NSWLR 463; [2001] NSWCA 419
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Falero

RESPONDENT:

Ms Holme

FILE NUMBER:

BRC

12439

2016

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

6 May 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace (via telephone), Ryan (via telephone) & Tree JJ

HEARING DATE:

17 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 September 2019

LOWER COURT MNC:

[2019] FCCA 3080

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person (via telephone)

Orders

That the Further Amended Notice of Appeal filed 31 January 2020 be allowed in part.
Save as provided in Order (4) hereof, that the orders of the primary judge made 3 September 2019 be set aside.
That the matter be remitted to the Federal Circuit Court of Australia for re‑hearing by a judge other than the primary judge.
That notwithstanding Order (2) hereof, the primary judge’s orders made 3 September 2019 continue to operate until the re-hearing pursuant to Order (3) hereof.
That otherwise the Further Amended Notice of Appeal filed 31 January 2020 be dismissed.
That the Court grant the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grant the appellant a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred in relation to the re-hearing.

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

IT IS NOTED that…

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 FALERO & HOLME

Details

AGLC: FALERO & HOLME [2020] FamCAFC 107
Case: [2020] FamCAFC 107
Decision Date: 6 May 2020

CaseChat Overview and Summary

Falero & Holme is a case that came before a higher court on appeal from a decision made by a lower court. The primary dispute revolves around the interpretation and application of certain legal principles in a matter heard by the Federal Circuit Court of Australia. The case was brought to the higher court, which is the Federal Court of Australia, by an appellant seeking to challenge the decision made by the primary judge.

The legal issues that the court had to address included the correctness of the primary judge's interpretation of specific legal principles and whether the decision was made in a manner that was procedurally fair and just. The appellant argued that the primary judge had erred in the application of the law, leading to an unjust outcome, and sought to have the decision overturned or varied. Additionally, the court needed to consider whether the appeal was properly brought and if the orders sought by the appellant were justified.

The court found that while there were grounds to allow the appeal in part, the matter should be remitted to the Federal Circuit Court of Australia for re-hearing by a different judge. The court held that the primary judge's interpretation of certain legal principles was flawed, leading to an unjust outcome. However, the court did not find it necessary to set aside all of the primary judge's orders, as some parts of the decision were deemed correct. The court also granted the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981, recognising the appellant's success in part on the appeal and the need for the matter to be re-heard.

In summary, the court allowed the appeal in part, set aside some of the primary judge's orders, and remitted the matter to the Federal Circuit Court of Australia for re-hearing by a different judge. The court also granted the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981 for the costs incurred in relation to the appeal and the re-hearing.

Orders

Orders of the court

That the Further Amended Notice of Appeal filed 31 January 2020 be allowed in part.

Save as provided in Order (4) hereof, that the orders of the primary judge made 3 September 2019 be set aside.

That the matter be remitted to the Federal Circuit Court of Australia for re‑hearing by a judge other than the primary judge.

That notwithstanding Order (2) hereof, the primary judge’s orders made 3 September 2019 continue to operate until the re-hearing pursuant to Order (3) hereof.

That otherwise the Further Amended Notice of Appeal filed 31 January 2020 be dismissed.

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

That the Court grant the appellant a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred in relation to the re-hearing.

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

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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