Herford and Berke - [2019] FamCAFC 99

FAMILY COURT OF AUSTRALIA

HERFORD & BERKE

[2019] FamCAFC 99

FAMILY LAW – APPEAL – ADJOURNMENT – Where the appellant seeks an order on appeal that the subject declaration made by a Federal Circuit Court of Australia Judge, as to the non-existence of a de facto relationship as at the relevant date to enliven jurisdiction, be set aside – Where, if this appeal is heard by a single judge, that would entail a single judge effectively offering a second opinion on the same or similar facts as were considered by the trial judge – Where it is inappropriate for the appeal to be heard by a single judge – Where the matter is adjourned to be heard by a bench of three judges – Appeal adjourned.

Family Law Act 1975 (Cth), s 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth), s 10

APPELLANT:

Ms Herford

RESPONDENT:	Mr Berke
FILE NUMBER:	BRC	3295	of	2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

11 June 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

11 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 December 2018

LOWER COURT MNC:

[2018] FCCA 3593

REPRESENTATION

COUNSEL FOR THE

APPELLANT:

Mr Coleman SC with Mr Flaherty

SOLICITOR FOR THE

APPELLANT:

Mullick & Associates

COUNSEL FOR THE RESPONDENT:

Mr Williams QC with Ms Murphy

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

The hearing of the appeal be adjourned to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised.
The electronic appeal book compiled by the Northern Appeals Registry be made available to the parties as soon as possible.
The Court grants to each party a costs certificate pursuant to the provisions of s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by each party in relation to the aborted hearing today.

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 Herford & Berke 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 3 of 2019
File Number: BRC 3295 of 2017

Ms Herford

Appellant

And

Mr Berke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Today was to be the hearing of the appeal by Ms Herford (“the appellant”) from 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 Herford and Berke

Details

AGLC: Herford and Berke [2019] FamCAFC 99
Case: [2019] FamCAFC 99
Decision Date: 11 June 2019

CaseChat Overview and Summary

The appeal in Herford and Berke was heard by the Federal Circuit and Family Court of Australia. The parties involved in the dispute were Herford and Berke, and the nature of the dispute was not specified in the order. The Court was required to make an order in relation to the aborted hearing that occurred on the day of the appeal.

The legal issue that the Court had to decide was whether to grant a costs certificate to each party in respect of the costs incurred by each party in relation to the aborted hearing. The Court also had to decide whether to make the electronic appeal book compiled by the Northern Appeals Registry available to the parties as soon as possible. Finally, the Court had to determine whether to adjourn the hearing of the appeal to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised.

The Court found that it would be appropriate to grant to each party a costs certificate in respect of the costs incurred by each party in relation to the aborted hearing. The Court also found that it would be appropriate to make the electronic appeal book compiled by the Northern Appeals Registry available to the parties as soon as possible. The Court decided to adjourn the hearing of the appeal to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The hearing of the appeal be adjourned to be heard in Sydney by a Full Court consisting of three Judges on a date to be advised.

The electronic appeal book compiled by the Northern Appeals Registry be made available to the parties as soon as possible.

The Court grants to each party a costs certificate pursuant to the provisions of s 10 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred by each party in relation to the aborted hearing today.

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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