FAMILY COURT OF AUSTRALIA
| HERRIDGE & HANDERSON AND ORS | [2011] FamCAFC 156 |
| FAMILY LAW - APPEAL – Appeal against parenting orders made by trial Judge after lengthy delay in delivery of judgment – In the circumstances, delay in the delivery of the judgment could not of itself enliven appellate intervention – None of the challenges raised by the appellant turn upon delay – Trial judge’s judgment nevertheless subjected to closer than usual scrutiny. FAMILY LAW - POINT OF LAW – Trial Judge erroneously referred to s 65DAA for the purpose of determining the question of parental responsibility without first considering whether the presumption of equal shared parental responsibility applied and whether it was rebutted pursuant s 61DA(2) – In circumstances where the evidence raised matters relevant to s 61DA(2)(b) trial Judge was obliged to consider that section and make findings with respect to it – Although the trial Judge gave considerable attention to the issue of family violence, it cannot be accepted that the trial Judge impliedly considered s 61DA(2) and declined to find that the presumption was rebutted – In circumstances where the trial Judge had concluded that equal shared parental responsibility was not in the children’s best interests, the outcome being the same, appellate intervention not enlivened – High Court’s decision in MRR v GRR (2010) 240 CLR 461 did not render departure from the legislative pathway erroneous – Challenge not established. FAMILY LAW - PROCEDURE – Whether the trial Judge’s reference in his reasons to a newspaper editorial not raised with the parties constituted a failure to afford the parties natural justice – Whether the trial Judge relied upon, or was influenced by, the editorial in reaching his conclusions as to the child’s use of Ritalin – Challenge established. FAMILY LAW - DISCRETION – Established that the trial Judge’s conclusion with respect to the best interests of the children was vitiated by his failure to have proper regard, or give adequate weight to various provisions of s 60CC. Appeal allowed and the matter remitted for re-hearing. |
| Family Law Act 1975 (Cth) Part VII |
| Abalos v Australian Postal Commission (1990) 171 CLR 167 Cameron & Walker (2010) FLC 93-445 De Winter v De Winter (1979) FLC 90-605 Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472 Gronow v Gronow (1979) 144 CLR 513 Korban & Korban [2009] FamCAFC 143 MRR v GR (2010) 240 CLR 461 Rollings & Rollings (2009) FLR 396 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 Wynona v Friend [2011] FamCAFC 6 |
| APPELLANT: | Ms Herridge |
| FIRST & SECOND RESPONDENTS: | Ms Handerson and Mr Luckwell Senior |
| THIRD RESPONDENT: | Mr Luckwell |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCF | 702 | of | 2006 |
| APPEAL NUMBER: | EA | 31 | of | 2011 |
| DATE DELIVERED: | 28 July 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, May & Crisford JJ |
| HEARING DATE: | 14 June 2011 |
| LOWER COURT JURISDICTION: | Family Court of… |
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- Herridge & Handerson [2011] FamCAFC 156
- Case
- [2011] FamCAFC 156
- Decision Date
CaseChat Overview and Summary
The court found that the delay in delivering the judgment did not constitute grounds for appellate intervention, as the challenges raised by the appellant were not dependent on the delay. However, the trial judge's judgment was subjected to closer scrutiny. The court found that the trial judge had erroneously referred to a particular section of the Family Law Act without first considering whether the presumption of equal shared parental responsibility applied and whether it was rebutted. Although the trial judge had given considerable attention to the issue of family violence, it could not be accepted that the trial judge had impliedly considered the relevant section of the Act and declined to find that the presumption was rebutted. The court also found that the trial judge's reference in his reasons to a newspaper editorial not raised with the parties constituted a failure to afford the parties natural justice, and that the trial judge's conclusion with respect to the best interests of the children was vitiated by his failure to have proper regard, or give adequate weight to various provisions of the Family Law Act.
As a result of these findings, the appeal was allowed and the matter was remitted for re-hearing. The orders of the trial judge were set aside, and the wife's application for parenting orders was remitted for re-hearing by a Judge in the Sydney Registry. The orders of the trial judge continued as interim orders until the redetermination of the proceedings. The court also granted costs certificates to the appellant mother, the father, and the Independent Children's Lawyer.
Orders
Orders of the court
(1) That the appeal be allowed.
(2) That the orders of the trial Judge be set aside.
(3) That the wife’s application for parenting orders be remitted for re-hearing by a Judge in the Sydney Registry.
(4) That the orders of the trial Judge continue as interim orders until the redetermination of the proceedings.
(5) That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 the Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
(6) That the Court grants to the Third Respondent Father a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 the Third Respondent Father in respect of the costs incurred by the Third Respondent Father in relation to the appeal.
(7) That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
(8) That the ICL have 21 days to seek a costs certificate by the filing of written submissions.
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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