FAMILY COURT OF AUSTRALIA
| HARTMANN & GARDINER | [2013] FamCAFC 126 |
| FAMILY LAW – APPEAL – CHILDREN – Procedural fairness – where the issues to be determined by the Federal Magistrate were of limited scope – where the Federal Magistrate made the orders proposed by the mother – where on appeal the father claimed the procedure adopted by the Federal Magistrate failed to afford him procedural fairness – where the Full Court was satisfied that the Federal Magistrate adequately explained to the father, who was a self represented litigant, the procedures relevant to the litigation; that the father had set out in his affidavits his evidence as to family violence and had chosen not to cross-examine the mother about family violence; that the Federal Magistrate had not “rushed” the father but rather put in place contingencies if he was unable to conclude the matter in the time available; that the Federal Magistrate expressed preliminary views, rather than concluded views, in respect of which his Honour clearly left it open for the father to persuade him otherwise; and that the Federal Magistrate gave the father every opportunity to present his case and make whatever submissions he saw fit – no merit found in this ground of appeal – appeal dismissed. FAMILY LAW – APPEAL – CHILDREN – Adjournment – where the father informed the Federal Magistrate at the start of the hearing he was without representation because his legal aid funding had been withdrawn and that he had unsuccessfully appealed that decision – where the father expressed concern about being unrepresented and indicated he was hoping there would only be “a part-hearing” and later indicated he would be appealing again to Legal Aid in order to obtain representation – where the father at no time during the hearing made a formal application to adjourn the proceedings, but it was clear that for him to pursue obtaining legal aid an adjournment was necessary – where the Full Court found the Federal Magistrate’s refusal to grant an adjournment did not result in a denial of justice to the father but an adjournment would have resulted in an injustice to the mother – no merit found in this ground of appeal – appeal dismissed. FAMILY LAW – APPEAL – COSTS – parties to file and serve submissions on the question of the costs of the appeal. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Maxwell v Keun [1928] 1 KB 645 Stead v State Government Insurance Commission (1986) 161 CLR 141 |
APPELLANT: | Mr Hartmann |
| RESPONDENT: | Ms Gardiner |
| INDEPENDENT CHILDREN’S LAWYER: | Capon & Hubert |
| FILE NUMBER: | CAC | 20 | of | 2007 |
| APPEAL NUMBER: | EA | 37 | of | 2012 |
| DATE DELIVERED: | 23 August 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Stevenson JJ |
| HEARING DATE: | 7 February 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 February 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 117 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR ADVOCATE FOR THE RESPONDENT: | Ms Wearne, Legal Aid… |
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- HARTMANN & GARDINER [2013] FamCAFC 126
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- [2013] FamCAFC 126
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