Hart & Sellwood

Case [2016] FamCAFC 254

FAMILY COURT OF AUSTRALIA

HART & SELLWOOD [2016] FamCAFC 254

FAMILY LAW – APPEAL – JURSIDICTION – Where order pursuant to s 11F of the Family Law Act 1975 (Cth) that the parents and child attend upon a family consultant for assessment – Whether s 11F order is a “decree” capable of appeal – Whether leave to appeal is required – Whether s 11F order a “child welfare matter” as defined in reg 15A(2) of the Family Law Regulations 1984 (Cth) – Consideration of reg 15A(2)(c) of the Regulations and s 61B of the Act – Where s 11F order is an order in relation to an aspect of parental responsibility – Leave to appeal not required.

FAMILY LAW – APPEAL – CHILDREN – Where final parenting orders made six months before respondent commenced fresh proceedings – Where threshold Rice and Asplund (1979) FLC 90-725 issue to be determined as a discrete hearing - Whether the primary judge erred in making the s 11F order without considering best interests of the child – Where the primary judge erred in failing have regard to evidence relevant to the exercise of that discretion – Appeal allowed – Order set aside – Proceedings remitted for rehearing.

FAMILY LAW – COSTS – Respondent to pay appellant’s costs.

Family Law Act 1975 (Cth): ss 4(1), 11F, 60CE, 61B, 64B, 69ZX(3), 94AAA, 94AA, 117

Family Law Regulations 1984 (Cth): reg 15A
Federal Circuit Court Rules 2001 (Cth): r 16.07(1)(e)
Commonwealth v Mullane (1961) 106 CLR 166
Marsden v Winch (2009) 42 Fam LR 1
Medlow & Medlow (2016) FLC 93-692
Morton & Berry (2014) FLC 93-613
Penfold v Penfold (1980) 144 CLR 311
Rice and Asplund (1979) FLC 90-725
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218
SPS and PLS (2008) FLC 93-363
Tallant & Kelsey (2016) FLC 93-742
Walter & Walter [2016] FamCAFC 56
APPELLANT: Ms Hart
RESPONDENT: Mr Sellwood
FILE NUMBER: NCC 2817 of 2013
APPEAL NUMBER: EA 117 of 2016
DATE DELIVERED: 2 December 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Newcastle
JUDGMENT OF: Ainslie-Wallace, Ryan & Murphy JJ
HEARING DATE: 16 November 2016
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 8 July 2016
LOWER COURT MNC: [2016] FCCA 2061

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Fowler
SOLICITOR FOR THE APPELLANT: Byrnes Lawyers
COUNSEL FOR THE RESPONDENT: Ms Carty (by direct brief)

Orders

  1. The appeal be allowed.

  2. That order (1) made by Judge Myers on 8 July 2016 be set aside.

  3. That the matter be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Myers.

  4. That the father pay the mother’s costs of and incidental to the appeal within twenty eight (28) days of agreement or assessment.

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 Hart & Sellwood has been approved by the…

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Hart & Sellwood [2016] FamCAFC 254
Case
[2016] FamCAFC 254
Decision Date

CaseChat Overview and Summary

Hart and Sellwood were involved in a family law dispute which reached the Family Court of Australia. The central issue was whether the court had jurisdiction to appeal an order made under section 11F of the Family Law Act 1975, which required the parents and their child to attend a family consultant for assessment. Additionally, the court had to determine whether leave to appeal was necessary and if the order was a "child welfare matter" as defined in regulation 15A(2) of the Family Law Regulations 1984. The court also considered whether the primary judge had correctly exercised their discretion in making the s 11F order without considering the best interests of the child and whether the judge had failed to regard relevant evidence.

The court held that the order under section 11F was not a "decree" that could be appealed without leave, and that leave was not required as the order related to an aspect of parental responsibility. The court found that the primary judge had erred in making the order without considering the best interests of the child and in failing to have regard to relevant evidence. The court concluded that the appeal should be allowed, the order set aside, and the matter remitted to the Federal Circuit Court for rehearing by a different judge. The father was ordered to pay the mother’s costs of and incidental to the appeal.

In light of the above, the court ordered that the appeal be allowed, the order made by Judge Myers on 8 July 2016 be set aside, and the matter be remitted to the Federal Circuit Court for rehearing by a different judge. The father was ordered to pay the mother’s costs of and incidental to the appeal within twenty-eight days of agreement or assessment. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal be allowed.

2.

That order (1) made by Judge Myers on 8 July 2016 be set aside.

3.

That the matter be remitted to the Federal Circuit Court for rehearing by a Judge other than Judge Myers.

4.

That the father pay the mother’s costs of and incidental to the appeal within twenty eight (28) days of agreement or assessment.

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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