Fortnum & Fortnum (No. 2)
[2009] FamCAFC 84
•19 May 2009
FAMILY COURT OF AUSTRALIA
| FORTNUM & FORTNUM (NO.2) | [2009] FamCAFC 84 |
| FAMILY LAW - COSTS SUBMISSIONS |
| Family Law Act 1975 |
| APPELLANT: | MR FORTNUM |
| RESPONDENT: | MRS FORTNUM |
INDEPENDENT CHILDREN’S LAWYER
| FILE NUMBER: | SYF | 631 | of | 2002 |
| APPEAL NUMBER: | EA | 66 | of | 2006 |
| EA | 18 | of | 2007 |
| DATE DELIVERED: | 19 May 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | FAULKS DCJ, COLEMAN AND CRONIN JJ |
| HEARING DATE: | IN CHAMBERS |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 May 2006 |
| LOWER COURT MNC: | [2006] FamCA 524 |
REPRESENTATION:
| THE APPLICANT: | IN PERSON |
| SOLICITOR FOR THE RESPONDENT: | DGB LAWYERS | |
| SOLICITOR FOR THE INDEPENDENT | ROBERTSON SOLICITORS | |
Orders
That paragraphs 3 to 6 of the orders made on 4 September 2008 be varied to read as follows:
(3)That by 4 pm on 8 June 2009, the appellant husband file and serve submissions in response to the submissions on behalf of the respondent wife in relation to the costs of the parenting appeal.
(4)That by 4 pm on 8 June 2009, the husband file and serve submissions in support of his appeal against the order for costs made against him by the trial Judge.
(5)That by 4 pm on 22 June 2009, the wife and the Independent Children’s Lawyer file and serve submissions in answer to such submissions.
(6)That by 4 pm on 6 July 2009, the husband file and serve submissions in reply to the submissions of the wife and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Fortnum and Fortnum (No. 2) is approved 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: EA66 OF 2006
File Number: SYF631 OF 2002
| MR FORTNUM |
Appellant
And
| MRS FORTNUM |
Respondent
REASONS FOR JUDGMENT
On 4 September 2008, we dismissed an appeal by the husband against parenting orders made by Cohen J on 31 May 2006.
The husband had also appealed against an order for costs made by Cohen J. Orders were also made on 4 September 2008 for that issue to be dealt with on written submissions. Those orders provided:
(3)That within twenty-one (21) days thereafter the appellant husband file and serve submissions in response to the submissions on behalf of the respondent wife in relation to the costs of the parenting appeal.
(4)That within fifty-six (56) days the husband file and serve submissions in support of his appeal against the order for costs made against him by the trial Judge.
(5)That within twenty-eight (28) days thereafter the wife and the ICL file and serve submissions in answer to such submissions.
(6)That within fourteen (14) days thereafter the husband file and serve submissions in reply to the submissions of the wife and the ICL.
On 28 October 2008, the husband filed an application in a case seeking a stay of the above-mentioned orders relating to the costs issue. The husband sought the stay until:
a)His application for special leave to appeal to the High Court of Australia is determined, and if granted, until the final determination of his appeal; or
b)The outcome of the inquiry, if any, by either the Federal Attorney-General or the Northern Territory Attorney General; or
c)The outcome of the inquiry, if any, by the Australian Psychological Society; or
d)The outcome of the inquiry, if any, by the Law Society of New South Wales or the New South Wales Legal Services Commissioner.
As has now transpired, the High Court of Australia refused the husband’s application for special leave on 29 April 2009. Hayne and Crennan JJ said:
3.On appeal by the applicant to the Full Court, that Court noted that, as the appeal was against the exercise of a discretion, it was governed by the principles set out in decisions of this Court such as House v The King (1936) 55 CLR 499. The Full Court considered that nothing in the applicant's complaint to that Court demonstrated error on the part of the primary judge. In particular, the applicant had demonstrated no reason to interfere with the primary judge's findings as to credibility, in relation to which the primary judge had a considerable advantage over the Full Court. Further, the Full Court rejected the applicant's contentions that the primary judge had exhibited bias towards him, and that a delay of almost two years between the hearing before the primary judge and the delivery of reasons by his Honour justified appellate intervention.
4.Despite the length of the delay between the hearing and the primary judge's decision, we see no reason to doubt the correctness of the conclusions reached by the Full Court that no basis was established for that Court to interfere with the factual findings of the primary judge, based on an assessment of the credibility of witnesses, that the child would be in great danger if he had contact with the applicant. It follows that there is no reason to doubt the correctness of the Full Court's conclusion that there was no basis for interfering with the primary judge's exercise of discretion. The interests of justice do not warrant a grant of special leave.
The outcome of the High Court application is the last avenue for appeal by the husband notwithstanding his indication of pursuing the matter with various other authorities.
The matter should now be finalised in this Court.
Because of the delay, there should be a final opportunity for the husband to put submissions in relation to the costs ordered by the trial judge and as a result of the outcome of the appeal.
Accordingly, we propose to order that paragraphs 3 to 6 of the orders made on 4 September 2008 be varied to read as follows:
(3)That by 4 pm on 8 June 2009, the appellant husband file and serve submissions in response to the submissions on behalf of the respondent wife in relation to the costs of the parenting appeal.
(4)That by 4 pm on 8 June 2009, the husband file and serve submissions in support of his appeal against the order for costs made against him by the trial Judge.
(5)That by 4 pm on 22 June 2009, the wife and the Independent Children’s Lawyer file and serve submissions in answer to such submissions.
(6)That by 4 pm on 6 July 2009, the husband file and serve submissions in reply to the submissions of the wife and the Independent Children’s Lawyer.
I certify that the preceding Eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 19 May 2009
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