Gupta & Gupta (No 2) - [2018] FamCAFC 77

FAMILY COURT OF AUSTRALIA

GUPTA & GUPTA (NO. 2)

[2018] FamCAFC 77

FAMILY LAW – APPEAL – PARENTING – Findings of fact – Where appeal proceeds in absence of appellant – Whether primary judge made error in findings of fact – Whether the primary judge erred in failing to admit certain affidavit evidence – Whether the primary judge erred in the conduct of the case – No error – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to dispense with the requirement to provide the transcript – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where appellant wholly unsuccessful – Whether the appellant would suffer financial hardship – Application for costs of the ICL granted.

Family Law Act 1975 (Cth) ss 61DA, 68C, 68B, 69ZN, 69ZX, 94AAA, 102QB, 117
Family Law Rules 2004 (Cth) r 22.30

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Gupta & Gupta [2018] FamCAFC 71
House v The King (1936) 55 CLR 499; [1936] HCA 40
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Mr Gupta

RESPONDENT:

Ms Gupta

INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

FILE NUMBER:

PAC

5828

2008

APPEAL NUMBER:

2017

DATE DELIVERED:

19 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Pascoe CJ, Ryan & Aldridge JJ

HEARING DATE:

12 April 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 August 2017

LOWER COURT MNC:

[2017] FCCA 1843

REPRESENTATION

THE APPELLANT:

No appearance

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Order made 12 April 2018

The appeal be dismissed.

Orders made 19 April 2018

The application in an appeal filed 2 February 2018 be dismissed.
The appellant pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,466.

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 Gupta & Gupta (No. 2) 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 a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 95 of 2017
File Number: PAC 5828 of 2008

Mr Gupta

Appellant

And

Ms Gupta

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 6 September 2017, Mr Gupta (“the father”) appeals against two sets of orders made by Judge Hughes on 11…

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 Gupta & Gupta (No 2)

Details

AGLC: Gupta & Gupta (No 2) [2018] FamCAFC 77
Case: [2018] FamCAFC 77
Decision Date: 19 April 2018

CaseChat Overview and Summary

The appeal was brought by the mother, who was dissatisfied with the findings of fact made by the primary judge regarding the parenting arrangements for her two children. The case was heard in the Family Court of Australia. The mother argued that the primary judge had erred in his findings and in his failure to admit certain affidavit evidence. Additionally, the mother claimed that the primary judge had mismanaged the proceedings. The father, who was absent during the appeal, did not contest the mother's claims. The court was required to determine whether the primary judge had indeed erred in his findings of fact, in the admission of evidence, or in the conduct of the case.

The court examined the primary judge's findings of fact and concluded that there was no error. The court found that the primary judge had carefully considered the evidence and had made findings that were supported by the material before him. The court also held that the primary judge had not erred in refusing to admit certain affidavit evidence, as it was either hearsay or irrelevant. Furthermore, the court found that the primary judge had not mismanaged the case, as the proceedings had been conducted in a fair and orderly manner. Consequently, the appeal was dismissed.

The mother also applied to dispense with the requirement to provide the transcript of the primary judge's reasons for the appeal. The court dismissed this application, as it found that the transcript was necessary for a proper consideration of the appeal. Finally, the mother applied for costs under the Interstate Cooperation Legislation, as she was wholly unsuccessful in the appeal and would suffer financial hardship. The court granted this application, ordering the father to pay the costs of the Interstate Cooperation Legislation.

Orders