Ferro and Kopel (No 2) - [2016] FamCA 1124

FAMILY COURT OF AUSTRALIA

FERRO & KOPEL (NO 2)

[2016] FamCA 1124

FAMILY LAW – PRACTICE AND PROCEDURE – where appeal set aside final orders and directed rehearing of parenting case – where the successful appellant desires to use findings otherwise unchallenged of the trial judge – where the Full Court remitter does not order any restrictions on the retrial – where s 69ZX(3) is basis of application to rely on previous findings – application refused because of risk of injustice by fettering of discretion.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bloomberg and Rod [2010] FamCAFC 112
Pateman v Higgin (1957) 97 CLR 521
Waterways Authority v FitzGibbon [2005] HCA 57; (2005) 79 ALJR 1816

APPLICANT:

Mr Ferro

RESPONDENT:

Ms Kopel

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

6467

2014

DATE DELIVERED:

23 December 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 December 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carter

SOLICITOR FOR THE APPLICANT:

Waterson Legal

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application in a case filed by the wife on 19 December 2016 be dismissed.
That the response of the husband filed 19 December 2016 be dismissed.
That each party have leave to file such affidavits as they are so advised.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferro & Kopel (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6467 of 2014

Mr Ferro

Applicant

And

Ms Kopel

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On 14 October 2016, the Full Court of this Court set aside final parenting orders made in May 2016 concerning the child J who is now aged seven years. The Court directed the matter be reheard. That hearing is to take place before me in March 2017.
The immediate issue is a ruling on whether or not, and if so, to what extent, the wife can rely upon findings made by the trial judge in May 2016. In November 2016, I allocated a hearing date for interlocutory disputes and each party was to file whatever documents they so desired to indicate what orders required a determination. In addition, each party…

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 Ferro and Kopel (No 2)

Details

AGLC: Ferro and Kopel (No 2) [2016] FamCA 1124
Case: [2016] FamCA 1124
Decision Date: 23 December 2016

CaseChat Overview and Summary

This matter concerned an application filed by the wife and a response filed by the husband, both on 19 December 2016, before Cronin J of the Family Court of Australia. The core of the dispute revolved around the admissibility and use of previous findings and evidence from other proceedings in the current case.

The primary legal issue before the court was the interpretation and application of section 69ZX(3) of the relevant Act. Specifically, the court was required to determine whether this provision permitted a trial judge to receive into evidence transcripts from other proceedings, draw conclusions of fact from them, and adopt findings, decisions, or judgments made in those proceedings. A related issue was whether the phrase "any other proceedings" in section 69ZX(3) excluded proceedings related to the same case.

Cronin J reasoned that while section 69ZX(3) is discretionary, a literal reading of the provision did not restrict its application to proceedings entirely separate from the current case. The judge found that excluding earlier hearings within the same case would contradict the provision's purpose of saving costs, time, and stress for litigants, particularly in light of mandatory procedural requirements. The court referred to the Full Court's decision in *Bloomberg and Rod* [2010] FamCAFC 112, where a judge had permissibly used previous court findings when historical issues mirrored current ones. The judge noted that findings of fact could encompass credit, specific incidents, or assessments of a party's overall position or intention.

The court ordered that the application filed by the wife and the response filed by the husband on 19 December 2016 be dismissed. Each party was granted leave to file such affidavits as they were advised. Furthermore, it was certified that, pursuant to Order 19.50 of the Family Law Rules 2004, it was reasonable to engage counsel to attend.

Orders

Orders of the court

That the application in a case filed by the wife on 19 December 2016 be dismissed.

That the response of the husband filed 19 December 2016 be dismissed.

That each party have leave to file such affidavits as they are so advised.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

At [37] Thackray J referred to s 69ZX(3) of the Act and said:That provision allows a trial judge to receive into evidence the transcript in other proceedings before the court; draw any conclusions of fact from that transcript that he or she thinks proper; and adopt any finding, decision or judgment made in those proceedings. (my emphasis) Thus, there were no apparent restrictions imposed by the Full Court but that does not mean I cannot do so. Section 69ZX(3) is a discretionary provision and in this case, it is not so much the evidence in the transcript that is the focus but rather the findings made by the previous trial judge. Counsel for the husband in resisting the wife’s application submitted that the words “any other proceedings” in s 69ZX(3) must mean proceedings other than these proceedings. There is some support for that conclusion because in the explanatory memorandum (at paragraph 30) relating to s 69ZX(3), the following is found:This amendment implements Recommendation 5 of the Family Law Council’s December 2014 report…which found that such a provision could provide a court with the flexibility to draw on relevant evidence adduced in other proceedings in other courts to inform decision-making in the best interests of the child… Whilst that may have been the intention, my view is that the literal reading of the section does not permit such a conclusion. A court could not be expected to exclude an earlier hearing in the same case when the whole purpose of the provision is to save costs, time and the stress of the litigation particularly having regard to the mandatory requirements of s 69ZN(4), (6) and (7) and s 69ZQ(1). Importantly, the provision (s69ZX(3)) is discretionary. That said, consideration should be given to the use to which some factual findings could be made because of s 69ZN and s 69ZQ. In Bloomberg and Rod [2010] FamCAFC 112 (May, Boland and Strickland JJ) an appeal was heard from Murphy J where his Honour had applied s 69ZX(3) and used previous courts’ findings as the Full Court described it:Where historical issues were mirrored in current issues.The Full Court noted that his Honour considered the findings he relied upon were “consistent with the exercise” before him. No criticism appears to have been made by the Full Court of those statements. In Bloomberg, Murphy J described the language of s 69ZX(3) as “permissive and unrestrained”. Findings of fact come in various forms. They can be findings as to credit but they can also be simply findings as to incidents that have occurred. However, as is apparent from what follows, they can also be findings in the form of an assessment of a party’s overall position or intention. Past authorities generally relate to cases where appeal courts have imposed restrictions on a remitter because injustice would be done by rehearing the whole case again. For example, in a personal injuries claim, a finding of liability followed by an assessment of damages is often seen as two different and discrete questions. An appeal court can assess the appropriateness of a retrial being limited to the assessment of damages where the outcome after a finding of liability is inexplicable (see Pateman v Higgin (1957) 97 CLR 521).

Ratio Decidendi

Legal Principle Established

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