Greer & Bedelia - [2009] FamCAFC 136

FAMILY COURT OF AUSTRALIA

GREER & BEDELIA

[2009] FamCAFC 136

FAMILY LAW - APPEAL – From a contravention finding of a Federal Magistrate – Whether the standard of proof applied need be identified – Uncontested evidence established a prima facie case – Standard was impliedly considered in reasons – Whether s. 70NAE of the Family Law Act 1975 (Cth) needed to be identified – No evidence adduced to trigger application of that section – Whether reasons given were sufficient – Appeal dismissed.

FAMILY LAW - APPEAL – From an order for a bond of a Federal Magistrate – Whether reasons given for imposing a bond were sufficient – Re-exercising bond not pressed – Requirements for a bond discussed – Obligations of judicial officer under s. 70NEC(5) discussed.

FAMILY LAW - APPEAL – From variation to a parenting order made by a Federal Magistrate – Whether the relevant provisions of the Act were identified – Whether reasons given were adequate – No submissions made opposing the variation – May infer variations were consented to.

FAMILY LAW - APPEAL – From a costs order of a Federal Magistrate – Whether the relevant provisions of the Act were identified – Whether reasons given for exercising discretion were sufficient – Appellant’s submissions regarding costs sparse – Reasons given were adequate.

Family Law Act 1975 (Cth), ss. 70NAE, 70NAF, 70NEC(5), 70NFE

Elspeth, Mark & John v Peter (Penalty and Costs) (2007) 37 Fam LR 696

APPELLANT:

Ms GREER

RESPONDENT:

Mr BEDELIA

FILE NUMBER:

BRC

1219

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

4 August 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Warnick & Barry JJ

HEARING DATE:

22 April 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 April 2008

LOWER COURT MNC:

[2008] FMCAfam 652

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Middleton

SOLICITOR FOR THE APPELLANT:

Family Law Solutions

COUNSEL FOR THE RESPONDENT:

Mr Galloway

SOLICITOR FOR THE RESPONDENT:

Vince Catanzaro Solicitor

Orders

The appeal filed 17 November 2008 against the orders of Federal Magistrate Purdon-Sully delivered 24 April 2008 be dismissed.
The Respondent file and serve written submissions on the issue of costs of the Appeal within seven (7) days of this judgment.
The Appellant file and serve written submissions on the issue of costs seven (7) days after receipt of the Respondent’s submissions on costs.

IT IS NOTED that publication of this judgment under the pseudonym Greer & Bedelia 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 BRISBANE

Appeal Number: NA 48/2008
File Number: BRC1219/2007

Ms GREER

Appellant

And

Mr BEDELIA

Respondent

REASONS FOR JUDGMENT

On the 24 April 2008 Federal Magistrate Purdon-Sully made findings that the Appellant, Ms Greer, had contravened parenting orders made by consent in the Federal Magistrates Court at Brisbane on 16 March 2007.[1] Thereafter her Honour made the following further orders (which summarily provide):
i)by way of penalty the Mother was…

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 Greer & Bedelia

Details

AGLC: Greer & Bedelia [2009] FamCAFC 136
Case: [2009] FamCAFC 136
Decision Date: 4 August 2009

CaseChat Overview and Summary

The appeal in Greer & Bedelia was lodged by the appellant against orders made by Federal Magistrate Purdon-Sully on 24 April 2008. The orders in question included a contravention finding, the imposition of a bond, a variation to a parenting order, and a costs order. The appellant challenged the sufficiency of the reasons given by the magistrate for each of these decisions. The appeal was ultimately dismissed by the court.

The court was required to determine whether the magistrate correctly identified the standard of proof in the contravention finding and whether section 70NAE of the Family Law Act 1975 (Cth) was appropriately considered. Additionally, the court assessed whether the reasons provided for imposing a bond were sufficient and whether the relevant provisions of the Act were identified in relation to the parenting order variation. Finally, the court examined whether the reasons for the costs order were adequate.

The court found that the magistrate had impliedly considered the standard of proof in the contravention finding, and there was no need for explicit identification. Furthermore, the court held that no evidence was adduced to trigger the application of section 70NAE, and the reasons given for the bond were sufficient. Regarding the parenting order variation, the court inferred that the variations were consented to, and thus the reasons were adequate. Lastly, the court determined that the reasons for the costs order were sufficient and aligned with the statutory discretion.

The appeal was dismissed, and the respondent was required to file and serve written submissions on the issue of costs of the Appeal within seven days of this judgment. The appellant was to file and serve written submissions on the issue of costs seven days after receipt of the respondent’s submissions on costs.

Orders

Orders of the court

The appeal filed 17 November 2008 against the orders of Federal Magistrate Purdon-Sully delivered 24 April 2008 be dismissed.

The Respondent file and serve written submissions on the issue of costs of the Appeal within seven (7) days of this judgment.

The Appellant file and serve written submissions on the issue of costs seven (7) days after receipt of the Respondent’s submissions on costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.