Green and Davis - [2012] FamCAFC 20

FAMILY COURT OF AUSTRALIA

GREEN & DAVIS

[2012] FamCAFC 20

FAMILY LAW ─ APPEAL ─ FURTHER EVIDENCE ─ Natural Justice and Procedural fairness ─ Where although there was no formal application to do so, the Court treated the evidence given by the mother during the course of the hearing as further evidence within the meaning of that expression in section 93A of the Act ─ Where the learned Federal Magistrate sought valiantly to facilitate the mother being heard, notwithstanding a previous order made by another Federal Magistrate that she attend in person if she wish to be heard ─ Where the Court could not reject the mother’s evidence that through technical difficulties the opportunity the learned Federal Magistrate sought to afford her to be heard was not able to be taken up ─ Where the Court was persuaded that the mother was denied natural justice or procedural fairness ─ Appeal against the orders made in the contravention proceedings upheld and the proceedings remitted for re-hearing

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Change of venue ─ Where the learned Federal Magistrate was, in the circumstances in which he found himself, entitled to conclude that the mother did not wish to participate in the proceedings, and implicit in that was an absence of desire to prosecute her application for change of venue ─ Where it was established that the order under appeal was, in the light of the further evidence which the mother relied on, erroneous without it having been established that it was erroneous at the time it was made on the evidence which presented itself to the learned Federal Magistrate ─ Appeal allowed, order dismissing the change of venue application set aside, matter remitted for re-hearing.

FAMILY LAW ─ APPEAL ─ JUDGMENTS─ Insufficient reasons ─ Established that the learned Federal Magistrate failed to provide adequate reasons for making the location order ─ Where it was established that the absence of adequate reasons meant that the father could not demonstrate that his Honour, in fact, had regard to the matters to which he was required to have regard under the statute ─ Location order set aside and the matter remitted for re-hearing

FAMILY LAW ─ APPEAL ─ COSTS ─ Where neither party was represented on the appeal ─ No entitlement to a costs certificate on the appeal emerged ─ The Court granted costs certificates to the parties in relation to the new trial ordered

Family Law Act 1975 (Cth) s 93A, Part VII
Federal Proceedings (Costs) Act 1981 (Cth) s 8

Abalos v Australian Postal Commission (1990) 171 CLR 167
Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

Ms Green

RESPONDENT:

Mr Davis

FILE NUMBER:

SYC

2567

2009

APPEAL NUMBER:

EAA

132

2011

DATE DELIVERED:

7 February 2012

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 Green and Davis

Details

AGLC: Green and Davis [2012] FamCAFC 20
Case: [2012] FamCAFC 20
Decision Date: 7 February 2012

CaseChat Overview and Summary

This appeal concerns a family law matter where Green and Davis were the parties involved. The dispute arose from contravention proceedings and applications for a change of venue and costs. The case was heard and determined by a Federal Magistrate, whose decisions were subsequently appealed. The appeal was heard by the Family Court of Australia, which found in favour of the appellant.

The central legal issues in this appeal were whether the Federal Magistrate erred in treating certain evidence as further evidence, whether the decision to deny the application for a change of venue was correct, and whether the Federal Magistrate provided adequate reasons for the location order. Additionally, the Court considered the appropriateness of awarding costs in the appeal and in the re-hearing of the matter.

The Court found that the Federal Magistrate had erred in treating the mother's evidence as further evidence, as it was not formally applied for, and that this constituted a breach of natural justice or procedural fairness. The Court also held that the Federal Magistrate was entitled to conclude that the mother did not wish to participate in the proceedings, which implied that she did not wish to prosecute her application for a change of venue. Furthermore, the Court determined that the Federal Magistrate failed to provide adequate reasons for the location order, which meant that the father could not demonstrate that his Honour had regard to the required matters under the statute. Consequently, the appeal was allowed, and the orders were set aside, with the matter remitted for re-hearing.

The Court further determined that neither party was represented on the appeal, and thus there was no entitlement to a costs certificate on the appeal. However, the Court granted costs certificates to the parties in relation to the new trial ordered. This decision underscores the importance of procedural fairness and the need for adequate reasons in family law matters.

Orders

Orders of the court

That the appeal be allowed.

That the findings and orders of FM Harman made in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the orders of 21 October 2011 be set side and the applications in relation thereto be remitted to the Federal Magistrates Court for rehearing.

That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 new trial granted by these orders.

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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