HARTMANN & GARDINER - [2013] FamCAFC 126

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the Federal Magistrate at the start of the hearing he was without representation because his legal aid funding had been withdrawn and that he had unsuccessfully appealed that decision – where the father expressed concern about being unrepresented and indicated he was hoping there would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

2007

APPEAL NUMBER:

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…

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.

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Details

AGLC: HARTMANN & GARDINER [2013] FamCAFC 126
Case: [2013] FamCAFC 126
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Hartmann appeals against parenting orders made by the Federal Magistrate on 15 February 2012. The appeal is opposed by Ms Gardiner and the Independent Children’s Lawyer. The appeal raises two grounds: first, that the Federal Magistrate did not afford the father procedural fairness, and second, that the Federal Magistrate should have granted an adjournment to allow the father to appeal a decision of Legal Aid. The Full Court found no merit in either ground of appeal. In relation to the first ground, the Full Court found that the Federal Magistrate adequately explained to the father, who was a self-represented litigant, the procedures relevant to the litigation, and that he gave the father every opportunity to present his case and make whatever submissions he saw fit. In relation to the second ground, the Full Court found that the Federal Magistrate appropriately exercised his discretion to refuse an adjournment, having regard to the interests of the children, the stress upon the mother, the burden to the public purse, and the prospect of the father not only obtaining legal aid, but also of that making any difference even if he did. The appeal is dismissed. The parties are to file and serve submissions on the question of the costs of the appeal.

Orders