Garza & Hammill - [2022] FedCFamC1A 142

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Garza & Hammill [2022] FedCFamC1A 142

Appeal from: Garza & Hammill [2022] FedCFamC2F 485

Appeal number(s): NAA 99 of 2022

File number(s): SYC 1392 of 2022

Judgment of: AUSTIN J

Date of judgment: 8 September 2022

Catchwords: FAMILY LAW – APPEAL – Parenting – Principles in Rice and Asplund (1979) FLC 90-725 – Where the primary judge dismissed the father’s application for fresh parenting orders – Whether the primary judge correctly applied principle – Where the father conflates evidence with submissions – Whether the primary judge ignored or disregarded the submissions made by the father – Where the primary judge was familiar with the father’s material and submissions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

Cases cited:
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Searson & Searson (2017) FLC 93-788; [2008] FamCAFC 16

SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16

Number of paragraphs: 33

Date of hearing: 8 September 2022

Place: Newcastle (via video link)

The Appellant: Self-represented litigant

Solicitor for the Respondent: Legal Aid Newcastle
ORDERS

NAA 99 of 2022
SYC 1392 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR GARZA

Appellant

AND:
MS HAMMILL

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

8 September 2022

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $1,980.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garza & Hammill has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
AUSTIN J:

This appeal is brought from the decision made on 12 April 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2), reflected in these two orders:
1.Order 12 of the Orders of 12 March 2022 restraining the mother from causing any COVID-19 booster vaccines to be administered to [the child] born [date] is discharged.
2.The father’s Application filed 4 March 2022 is dismissed and the proceedings are removed from the Active Pending Cases List.
As can be seen, the second order dismissed the father’s application for fresh parenting orders, filed a month beforehand in March 2022, and the first order discharged an interim injunction made about a week afterwards whilst the father’s fresh application was still pending.
The Initiating Application filed by the father had sought orders in…

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 Garza & Hammill

Details

AGLC: Garza & Hammill [2022] FedCFamC1A 142
Case: [2022] FedCFamC1A 142
Decision Date

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of New South Wales. The parties involved were Garza, the appellant, and Hammill, the respondent. The dispute centred around the interpretation and application of the legal principles that governed the initial decision made in the lower court. The appeal was brought against the findings and conclusions reached in that court, seeking a reversal or modification of the original judgment.

The court was tasked with determining whether the lower court had correctly applied the relevant legal principles and whether the findings of fact were supported by the evidence presented. The appeal also questioned the appropriateness of the remedies granted by the lower court. The central issue was the interpretation of a particular legal provision and its application to the facts of the case, which led to differing conclusions by the parties.

The Supreme Court found that the lower court's application of the legal principles was correct, and the findings of fact were adequately supported by the evidence. The appeal did not succeed in demonstrating any errors or misapplications of the law that warranted a different outcome. The court held that the lower court's decision was sound and should be upheld. Given the unsuccessful nature of the appeal, the court ordered the respondent to be awarded costs in the amount of $1,980, which represented the legal aid grant received for the appeal. This costs order reflected the appellant's failure to establish any merit in the appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

These grounds fail.Conclusion The appeal fails for lack of merit. The respondent was represented in the appeal by a solicitor employed by Legal Aid NSW and was the recipient of a grant of legal aid in the sum of $1,980 for the appeal. The respondent sought a costs order against the appellant for that sum, which she should have. The appeal was wholly unsuccessful and should not have been brought.

Ratio Decidendi

Legal Principle Established

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NAA 99 of 2022 SYC 1392 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR GARZA Appellant
AND:	MS HAMMILL Respondent

Appeal from:	Garza & Hammill [2022] FedCFamC2F 485
Appeal number(s):	NAA 99 of 2022
File number(s):	SYC 1392 of 2022
Judgment of:	AUSTIN J
Date of judgment:	8 September 2022
Catchwords:	FAMILY LAW – APPEAL – Parenting – Principles in Rice and Asplund (1979) FLC 90-725 – Where the primary judge dismissed the father’s application for fresh parenting orders – Whether the primary judge correctly applied principle – Where the father conflates evidence with submissions – Whether the primary judge ignored or disregarded the submissions made by the father – Where the primary judge was familiar with the father’s material and submissions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.
Cases cited:	Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Searson & Searson (2017) FLC 93-788; [2008] FamCAFC 16 SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Number of paragraphs:	33
Date of hearing:	8 September 2022
Place:	Newcastle (via video link)
The Appellant:	Self-represented litigant
Solicitor for the Respondent:	Legal Aid Newcastle

order made by:	AUSTIN J
DATE OF ORDER:	8 September 2022