Farmer & Rogers - [2009] FamCAFC 117

FAMILY COURT OF AUSTRALIA

FARMER & ROGERS

[2009] FamCAFC 117

FAMILY LAW – APPEAL from decision of a Federal Magistrate – procedural fairness – whether the Federal Magistrate failed to hear and determine an application for an adjournment by a litigant in person during interim proceedings for a recovery order – whether the Federal Magistrate failed to consider the mother’s material – appeal allowed in part

FAMILY LAW – APPEAL from decision of a Federal Magistrate – interim arrangements for a baby to have time with the father – whether the Federal Magistrate erred in the exercise of discretion – whether there was a failure to consider the age and circumstances of the child – appeal allowed in part

Federal Proceedings (Costs) Act 1981
Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
C & S (1998) FamCA 66
Gronow & Gronow (1979) 144 CLR 513; (1979) HCA 63
House & the King (1936) 55 CLR 499
Morgan & Miles (2007) FLC 93-393
Re F Litigants in Person Guidelines (2001) FLC 93-072
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

MS FARMER

RESPONDENT:

MR ROGERS

FILE NUMBER:

BRC

2790

2009

APPEAL NUMBER:	NA	44	of	2009
&	NA	49	of	2009

DATE DELIVERED:

10 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

9 July 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 May 2009 &
5 June 2009

LOWER COURT MNC:

[2009] FMCAfam 562
[2009] FMCAfam 705

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Simonidis Shoebridge Lawyers

Orders

The appeal in relation to the orders made on 15 May 2009 be allowed.
The applications of the parties’ be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coates.
The interim orders made 5 June 2009 continue until the commencement of a re-hearing.
The Court grants to the appellant mother 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the Court grants to the respondent father 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 father in respect of the costs incurred by the respondent father in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Farmer & Rogers 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…

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 Farmer & Rogers

Details

AGLC: Farmer & Rogers [2009] FamCAFC 117
Case: [2009] FamCAFC 117
Decision Date: 10 July 2009

CaseChat Overview and Summary

The case of Farmer & Rogers involved an appeal against decisions made by a Federal Magistrate in family law proceedings. The mother, the appellant, challenged the Federal Magistrate's handling of procedural fairness during interim proceedings, specifically whether the Magistrate failed to hear and determine her application for an adjournment and to consider her material. Additionally, she appealed the Magistrate's exercise of discretion regarding interim arrangements for the baby to spend time with the father, asserting that the Magistrate failed to consider the child's age and circumstances.

The court addressed two primary issues. Firstly, whether the Federal Magistrate failed to hear and determine the application for an adjournment, which is a matter of procedural fairness. Secondly, whether the Magistrate erred in the exercise of discretion in setting interim arrangements for the child's time with the father, specifically if the Magistrate failed to adequately consider the child's age and circumstances. The court found that the Federal Magistrate had indeed failed to properly consider the mother's application for an adjournment and that there was an insufficient consideration of the child's age and circumstances in the exercise of discretion.

As a result of these findings, the court allowed the appeal in part. The orders made on 15 May 2009 were set aside, and the applications of the parties were remitted for re-hearing before a different Federal Magistrate. The interim orders made on 5 June 2009 were to remain in effect until the re-hearing. Furthermore, the court granted the mother a costs certificate under the Federal Proceedings (Costs) Act 1981 and similarly granted the father a costs certificate, recognising the costs incurred by both parties in relation to the appeal.

Orders

Orders of the court

The appeal in relation to the orders made on 15 May 2009 be allowed.

The applications of the parties’ be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Coates.

The interim orders made 5 June 2009 continue until the commencement of a re-hearing.

The Court grants to the appellant mother 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.

That the Court grants to the respondent father 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 father in respect of the costs incurred by the respondent father in relation to the appeal.

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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