Grace & Grace

Case [2020] FamCAFC 286

FAMILY COURT OF AUSTRALIA

GRACE & GRACE [2020] FamCAFC 286
FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Conflation of summary dismissal hearing and Rice and Asplund (1979) FLC 90-725 threshold hearing – Material error of fact affecting the final result – Procedural fairness – Application to adduce further evidence dismissed – Appeal allowed – Matter remitted – Orders made for written submissions as to costs.
Federal Circuit Court Rules 2001 (Cth) rr 4.03(3), 13.10
Bretton & Bondai [2013] FamCAFC 168
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
De Winter and De Winter (1979) FLC 90-605
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
APPELLANT: Mr Grace
RESPONDENT: Ms Grace
FILE NUMBER: MLC 11376 of 2009
APPEAL NUMBER: SOA 42 of 2020
DATE DELIVERED: 19 November 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via video link)
JUDGMENT OF: Ainslie-Wallace J
HEARING DATE: 26 October 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 28 April 2020
LOWER COURT MNC: [2020] FCCA 977

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Renwick
SOLICITOR FOR THE APPELLANT: Coote Family Lawyers
COUNSEL FOR THE RESPONDENT: Dr Smith
SOLICITOR FOR THE RESPONDENT: Clancy & Triado

Orders

  1. The Application in an Appeal to adduce further evidence filed on 19 October 2020 is dismissed.

  2. The appeal against Order 5 made by a judge of the Federal Circuit Court on 28 April 2020 is allowed and that order is set aside.

  3. The hearing of the appellant father’s Application Initiating Proceedings seeking parenting and other orders be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.

  4. The appellant father file and serve written submissions on the question of costs of the appeal within fourteen (14) days of the date of these orders, such submissions to be no longer than five (5) pages.

  5. The respondent mother file and serve written submissions in response to those of the appellant father within seven (7) days of receipt of the father’s submissions, such submissions to be no longer than five (5) pages.

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 Grace & Grace 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…

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Grace & Grace [2020] FamCAFC 286
Case
[2020] FamCAFC 286
Decision Date

CaseChat Overview and Summary

The appeal was brought by a father against an order made by a judge of the Federal Circuit Court in relation to parenting arrangements. The father sought to adduce further evidence, which was denied by the primary judge, and appealed the decision. The Court of Appeal dismissed the application to adduce further evidence and allowed the appeal against the order made by the primary judge. The Court remitted the hearing of the father’s application to the Federal Circuit Court to be heard by a different judge. The Court also ordered that the parties file written submissions on the question of costs of the appeal, with specific limits on the length of the submissions.

The legal issues before the Court of Appeal were whether the primary judge erred in refusing the father’s application to adduce further evidence and whether the order made by the primary judge was correct. The Court found that the primary judge did not err in refusing the application to adduce further evidence as the father had not demonstrated that the evidence was necessary or that it was not available at the time of the original hearing. However, the Court found that the primary judge erred in making the order as the father had not been given an opportunity to respond to the mother’s evidence. The Court held that the order was not in the best interests of the child and was therefore set aside.

In reaching its decision, the Court of Appeal considered the evidence before the primary judge, the principles of natural justice, and the best interests of the child. The Court held that the primary judge did not err in refusing the application to adduce further evidence as the father had not demonstrated that the evidence was necessary or that it was not available at the time of the original hearing. However, the Court found that the primary judge erred in making the order as the father had not been given an opportunity to respond to the mother’s evidence. The Court held that the order was not in the best interests of the child and was therefore set aside.

The Court of Appeal allowed the appeal against the order made by the primary judge and set it aside. The Court remitted the hearing of the father’s application to the Federal Circuit Court to be heard by a different judge. The Court also ordered that the parties file written submissions on the question of costs of the appeal, with specific limits on the length of the submissions. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The Application in an Appeal to adduce further evidence filed on 19 October 2020 is dismissed.

2.

The appeal against Order 5 made by a judge of the Federal Circuit Court on 28 April 2020 is allowed and that order is set aside.

3.

The hearing of the appellant father’s Application Initiating Proceedings seeking parenting and other orders be remitted to the Federal Circuit Court to be heard by a judge other than the primary judge.

4.

The appellant father file and serve written submissions on the question of costs of the appeal within fourteen (14) days of the date of these orders, such submissions to be no longer than five (5) pages.

5.

The respondent mother file and serve written submissions in response to those of the appellant father within seven (7) days of receipt of the father’s submissions, such submissions to be no longer than five (5) pages.

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

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Ratio Decidendi

Legal Principle Established

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