HARDING & WATSON - [2014] FamCAFC 188

FAMILY COURT OF AUSTRALIA

HARDING & WATSON

[2014] FamCAFC 188

FAMILY LAW – APPEAL – NOTICE OF APPEAL – APPLICATION IN AN APPEAL – where the appellant seeks to adduce further evidence – where the application is opposed – where the evidence sought to be adduced is not evidence that comes within the principles established in CDJ v VAJ (1998) 197 CLR 172 and plainly fails to demonstrate error by the trial judge – application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the trial judge found there were no changed circumstances sufficient to re-open the litigation – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks an order for costs on an indemnity basis – where the application is opposed – where there are circumstances that justify an order for costs being made – where the respondent has failed to comply with Rule 19.08(3) of the Family Law Rules 2004 (Cth) and that failure is fatal to the application for the costs to be assessed on an indemnity basis – costs ordered in favour of the respondent to be assessed on a party/party basis in default of agreement.

Family Law Act 1975 (Cth) – ss 60CC and 117

Family Law Rules (2004) (Cth) – rr 1.12 and 19.08(3)

CDJ v VAJ (1998) 197 CLR 172
Poisat & Poisat [2014] FamCAFC 128
Rice and Asplund (1979) FLC 90-725
SCVG & KLD [2014] FamCAFC 42
SPS & PLS (2008) FLC 93-363

APPELLANT:

Ms Harding

RESPONDENT:

Mr Watson

FILE NUMBER:

MLC

12820

2007

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

2 October 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

27 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 August 2013

LOWER COURT MNC:

[2013] FCCA 1198

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Davis

SOLICITOR FOR THE APPELLANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Robinson Gill

Orders

The application in an appeal filed on 10 February 2014 be dismissed.
The appeal be dismissed.
The appellant mother pay the costs of the respondent father of and incidental to the appeal, with such costs to be as assessed on a party/party basis in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harding & Watson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 56 of 2013
File Number: MLC 12820 of 2007

Ms Harding

Appellant

And

Mr Watson

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 11 September 2013, Ms Harding (“the mother”) seeks to appeal orders made by Judge Hartnett on 14 August 2013.
The appeal is opposed by Mr Watson (“the…

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 HARDING & WATSON

Details

AGLC: HARDING & WATSON [2014] FamCAFC 188
Case: [2014] FamCAFC 188
Decision Date: 2 October 2014

CaseChat Overview and Summary

The appeal in Harding & Watson was heard by the Family Court of Australia. The dispute centred on the propriety of the trial judge's decision in relation to the parenting arrangements for the parties' child. The mother, who was the appellant, sought to appeal the decision on the grounds of alleged procedural unfairness and the trial judge's alleged failure to properly consider the child's best interests. The father, as the respondent, opposed the appeal and further sought an order for costs on an indemnity basis.

The court was required to determine whether the application in the appeal, which sought to adduce further evidence, was permissible. The court also had to consider the merits of the appeal itself, including whether there were changed circumstances warranting a re-opening of the litigation. The court further examined the father's application for costs on an indemnity basis, assessing whether the circumstances justified such an order and whether the mother had complied with the relevant procedural requirements.

The court found that the evidence sought to be adduced in the appeal was not within the principles established in CDJ v VAJ and did not demonstrate any error by the trial judge. Consequently, the application in the appeal was dismissed. The court also concluded that there was no merit in any of the grounds of appeal and that the trial judge had correctly found no changed circumstances sufficient to re-open the litigation. As for the costs, the court found that the father had failed to comply with Rule 19.08(3) of the Family Law Rules 2004 (Cth), which was fatal to the application for the costs to be assessed on an indemnity basis. Instead, the court ordered that the costs be assessed on a party/party basis in default of agreement.

The appeal was dismissed, and the mother was ordered to pay the costs of the appeal to the father, with the costs to be assessed on a party/party basis in default of agreement.

Orders

Orders of the court

The application in an appeal filed on 10 February 2014 be dismissed.

The appeal be dismissed.

The appellant mother pay the costs of the respondent father of and incidental to the appeal, with such costs to be as assessed on a party/party basis in default of agreement.

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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