Ganzer and Jelbart - [2018] FamCAFC 248

FAMILY COURT OF AUSTRALIA

GANZER & JELBART

[2018] FamCAFC 248

FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeals be allowed and the matter be remitted for rehearing – Where the parties seek costs certificates be granted pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the primary judge did not allow competing applications for parenting orders to be heard in open court – Appeals allowed – Orders set aside and proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge – Costs certificates issued.

Family Law Act 1975 (Cth) s 97
Federal Circuit Court of Australia Act 1999 (Cth) ss 54, 55, 56
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8,9
Federal Circuit Court Rules 2001 r 15.03

Bass & Bass (2008) FLC 93-366; [2008] FamCAFC 67
Bhatnagar & Riju [2018] FamCAFC 144

Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; [2014] FamCAFC 241
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Rutherford & Rutherford (1991) FLC 92-255; [1989] FamCA 72

APPELLANT:

Ms Ganzer

RESPONDENT:

Mr Jelbert

FILE NUMBER:

CAC

144

2015

APPEAL NUMBERS:

EAA
EAA

84
85

of
of

2018
2018

DATE DELIVERED:

27 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ryan & Watts JJ

HEARING DATE:

27 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 June 2018 and 18 June 2018

LOWER COURT MNC:

[2018] FCCA 1771

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Christie SC

SOLICITOR FOR THE APPELLANT:

Dobinson Davey Clifford Simpson

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Yeend & Associates

Orders

IT IS ORDERED THAT:

To the extent necessary, leave to appeal be granted.

IT IS ORDERED BY CONSENT THAT:

The appeals be allowed.
The orders made by Judge Neville on 1 June 2018 and 18 June 2018 be set aside.
The matter be remitted to the Canberra Registry of the Federal Circuit Court of Australia for an interim hearing by a Judge other than Judge Neville.

IT IS FURTHER ORDERED THAT:

The Court grants to the appellant 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 her in relation to this appeal.
The Court grants the respondent 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 him in relation to this appeal.
The Court grants to each party a costs certificate pursuant to the provisions…

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 Ganzer and Jelbart

Details

AGLC: Ganzer and Jelbart [2018] FamCAFC 248
Case: [2018] FamCAFC 248
Decision Date: 27 November 2018

CaseChat Overview and Summary

Ganzer and Jelbart was an appeal heard by Justice Ryan in the Federal Court of Australia. The case involved an appeal from decisions made by Judge Neville concerning interim parenting orders. The mother in the case argued that she had not consented to the decision being made without an oral hearing, as required by Rule 15.03 of the Federal Circuit Court Rules 2001. The legal issue before the court was whether the primary judge had erred in making the decision without an oral hearing and if the mother's right to present her arguments in open court had been properly upheld. The court found that there was indeed appealable error, as the mother had not consented to a decision without an oral hearing, and that the orders of the primary judge should be set aside. Additionally, the court noted that the matter should be remitted for rehearing before a different judge. Given the nature of the appeals and their success on a question of law, the court also addressed the issue of costs, determining that neither party should bear the other's costs and that costs certificates should be issued to both parties.

The court granted leave to appeal to the extent necessary and allowed the appeals by consent. The orders made by Judge Neville on 1 June 2018 and 18 June 2018 were set aside, and the matter was remitted to the Canberra Registry of the Federal Circuit Court of Australia for an interim hearing by a judge other than Judge Neville. Additionally, the court issued costs certificates to both parties under sections 9, 6, and 8 of the Federal Proceedings (Costs) Act 1981 (Cth), ensuring that the Attorney-General would be authorised to pay the costs incurred by each party in relation to the appeal and the rehearing of the proceedings. These orders were made to ensure that the procedural rights of the parties were respected and that the matter was fairly reheard.

Orders

Orders of the court

IT IS ORDERED THAT:

To the extent necessary, leave to appeal be granted.

IT IS ORDERED BY CONSENT THAT:

The appeals be allowed.

The orders made by Judge Neville on 1 June 2018 and 18 June 2018 be set aside.

The matter be remitted to the Canberra Registry of the Federal Circuit Court of Australia for an interim hearing by a Judge other than Judge Neville.

IT IS FURTHER ORDERED THAT:

The Court grants to the appellant 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 her in relation to this appeal.

The Court grants the respondent 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 him in relation to this appeal.

The Court grants to each party a costs certificate pursuant to the provisions of 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 each party in respect of such part as the Attorney General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

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

Rule 15.03 of the Federal Circuit Court Rules 2001 provides:15.03 Decisions without oral hearingThe Court or a Judge may make a decision in a proceeding without an oral hearing if the parties to the proceeding consent to the making of the decision without an oral hearing.(Emphasis added) Whilst the primary judge refers to s 56 of the Federal Circuit Court of Australia Act 1999 (Cth), recording that it allows directions to be given about the use of written submissions, that section cannot be read as negating the mother’s right to present her arguments in the interim parenting case in open court. At no time did the mother consent to the primary judge making a decision in respect of interim parenting without an oral hearing. Accordingly, I am satisfied of appealable error in this case and that it is proper that the parties consent to the appeals being allowed, the orders of the primary judge being set aside and the proceedings being remitted for rehearing. As already indicated, the parties seek cost certificates pursuant to ss 9, 6 and 8 of the Costs Act in respect of these appeals and for the rehearing. Given that these appeals primarily relates to parenting orders and given the basis upon which the appeals have been allowed, neither party should be required to pay the costs of the other party. The appeals are federal appeals which have been heard and which have succeeded on a question of law. I am satisfied that there should be costs certificates issued to the appellant, the respondent and to both pursuant to ss 9, 6 and 8 of the Costs Act respectively. I would propose making the following orders:a)The appeals be allowed.b)The orders made by Judge Neville on 1 June 2018 and 18 June 2018 be set aside.c)The matter be remitted to the Canberra Registry of the Federal Circuit Court of Australia for an Interim Hearing by a Judge other than Judge Neville.d)Orders in the usual terms for costs certificates pursuant to ss 9, 6 and 8 of the Costs Act. Just before Justice Ryan delivers her reasons for judgment, I wish to make three comments which will form part of my reasons. First, I note that the consent orders seek that the matter be remitted to the Canberra Registry of the Federal Circuit Court for an urgent interim hearing by a Judge other than Judge Neville. Unfortunately, it is not open to this Court to make such an order in so far as it requires an urgent interim hearing by the Federal Circuit Court. Thus we will not be making the order in those terms, and it is obviously open to the parties to approach the Canberra Registry to secure an urgent interim hearing. The second matter I want to mention is that I note that leave to appeal is not sought in either Amended Notice of Appeal. It seems to me that it is arguable that leave to appeal is required in at least one of the appeals, and probably in relation to the first appeal. That though will not affect the outcome of the two appeals in my view. Applying any test from the relevant authorities, such as Rutherford & Rutherford (1991) FLC 92-255, Medlow & Medlow (2016) FLC 93-692 and Bass & Bass (2008) FLC 93-366, leave to appeal should be granted here and I would do so to the extent necessary.

Ratio Decidendi

Legal Principle Established

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