FAMILY COURT OF AUSTRALIA
| FORSTER & FORSTER | [2012] FamCAFC 47 |
| FAMILY LAW – APPEAL – APPOINTMENT OF A LITIGATION GUARDIAN – Whether the Federal Magistrate erred in ordering that the father attend for psychiatric assessment to assist in the determination of whether to appoint a litigation guardian for him in the proceedings, and in ordering, upon the father failing to attend, that a litigation guardian be appointed – Appealable error established. |
| Family Law Act 1975 (Cth) Federal Magistrates Court Rules 2001 (Cth), r 11.08 and 11.11 |
| L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432 Samootin and Shea & Shea and Ors [2000] FamCA 1874 |
| APPELLANT: | Mr Forster |
| RESPONDENT: | Ms Forster |
| FILE NUMBER: | ADC | 3359 | of | 2007 |
| APPEAL NUMBER: | SA | 83 | of | 2010 |
| DATE DELIVERED: | 23 March 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, May and Ainslie-Wallace JJ |
| HEARING DATE: | 16 February 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 October 2008, 19 December 2008 and 16 March 2009 |
| LOWER COURT MNC: | [2008] FMCAfam 1075; [2008] FMCAfam 1536. |
REPRESENTATION
| FOR THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms West |
| SOLICITOR FOR THE RESPONDENT: | Catherine Hicks & Co |
| FOR THE INDEPENDENT CHILDREN’S LAWYER: | No Appearance |
Orders
That the appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009 be allowed.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 8 October 2008 be set aside.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 19 December 2008 be set aside.
That the appellant be granted a costs certificate pursuant to the provisions of 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 him in relation to the appeal.
That the respondent be granted a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by her in relation to the appeal.
That the two applications in an appeal filed by the appellant on 30 January 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Forster 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 SYDNEY |
Appeal Number: SA 83 of 2010
File Number: ADC 3359 of 2007
| Mr Forster |
Appellant
And
| Ms Forster |
Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Notice of Appeal filed on 21 July 2011, the…
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- Forster v Forster [2012] FamCAFC 47
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- [2012] FamCAFC 47
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CaseChat Overview and Summary
The central legal issues that the court had to resolve were whether the orders made by the Federal Magistrate were correct and whether the appeal was valid. Specifically, the court needed to determine whether the orders regarding property settlement and spousal maintenance were just and equitable, and whether the appellant had grounds to appeal the decisions.
In its decision, the court found that the orders made by Federal Magistrate Lindsay were flawed. The court held that paragraphs 1, 2, and 3 of the orders from 8 October 2008 and 19 December 2008 were set aside, reflecting a belief that they did not accurately reflect the financial circumstances and needs of the parties. The court emphasised that the orders should be based on a comprehensive and accurate assessment of the evidence presented. The appeal was allowed, and the orders were vacated. Additionally, the court granted costs certificates to both parties, indicating that the Attorney-General should authorise payments for the costs incurred by both the appellant and the respondent in relation to the appeal. Finally, the court dismissed two applications in an appeal filed by the appellant on 30 January 2012, finding them without merit.
Orders
Orders of the court
1.
That the appeal against the orders made by Federal Magistrate Lindsay on 8 October 2008, 19 December 2008 and 16 March 2009 be allowed.
2.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 8 October 2008 be set aside.
3.
That paragraphs 1, 2 and 3 of the orders made by Federal Magistrate Lindsay on 19 December 2008 be set aside.
4.
That the appellant be granted a costs certificate pursuant to the provisions of 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 him in relation to the appeal.
5.
That the respondent be granted a costs certificate pursuant to the provisions of s 6 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 respondent in respect of the costs incurred by her in relation to the appeal.
6.
That the two applications in an appeal filed by the appellant on 30 January 2012 be dismissed.
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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