Manderville & Borah - [2021] FedCFamC1A 59

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Manderville & Borah [2021] FedCFamC1A 59

Appeal from: Borah & Manderville [2020] FCCA 3248

Appeal number(s): NOA 83 of 2020

File number(s): BRC 1678 of 2015

Judgment of: AINSLIE-WALLACE J

Date of judgment: 11 November 2021

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals final parenting orders – Procedural fairness – Where the mother had lawyers pursuant to s 102 NA of the Family Law Act 1975 (Cth) – Where those lawyers withdrew – Where there was no denial of procedural fairness – Appeal dismissed – Costs ordered in a fixed sum.

Legislation: Family Law Act 1975 (Cth) ss 102NA, 117

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

M v M (1988) 166 CLR 69; [1988] HCA 68

Mobil Oil Australia Pty Ltd v Commissioner of Taxation (Cth) (1963) 113 CLR 475; [1963] HCA 41

Sali v SPC Ltd (1993) 116 ALR 625 [1993] HCA 47

Number of paragraphs: 76

Date of hearing: 13 October 2021

Place: Sydney

Counsel for the Appellant: Dr Lake

Solicitors for the Appellant: Kea Legal

Counsel for the Respondent: Mr Drysdale

Solicitors for the Respondent: Hopgood Ganim Lawyers
ORDERS

NOA 83 of 2020
BRC 1678 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS MANDERVILLE

Appellant

AND:
MR BORAH

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

11 NOVEMBER 2021

THE COURT ORDERS THAT:
1.Appeal NOA 83 of 2020 be dismissed.
2.Within 28 days of this order, the mother pay the father’s costs of the appeal fixed in the sum of $24,227.00.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manderville & Borah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:

By Notice of Appeal filed 7 December 2020, as amended on 6 August 2021, Ms Manderville (“the mother”) appeals final parenting orders made by a primary judge in the Federal Circuit Court of Australia on 1 December 2020 in proceedings with Mr Borah (“the father”).
There are two children of the parties’ relationship, X aged 13 years and Y aged 9 years.
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 Manderville & Borah

Details

AGLC: Manderville & Borah [2021] FedCFamC1A 59
Case: [2021] FedCFamC1A 59
Decision Date

CaseChat Overview and Summary

The mother, Ms Manderville, appealed the final parenting orders made by a primary judge in the Federal Circuit Court of Australia in proceedings with Mr Borah, the father. The two children of the parties' relationship, X and Y, were aged 13 and 9 years respectively at the time of the appeal. The parenting orders provided that the children live with the father and he have sole parental responsibility for them. The primary judge ordered that the children spend time with the mother during school terms as agreed between the parties or if there is no agreement each alternate weekend. School holiday time was to be agreed and, again if there is no agreement the children would spend the first half of each school holiday with the mother and the second with the father. Other orders were made which accommodated time on special occasions, school activities and the like. The appeal was dismissed, and the mother ordered to pay the father's costs of the appeal in a fixed sum of $24,227.00.

The appeal raised five grounds of challenge to the primary judge's orders however at the hearing of the appeal, counsel who appeared for the mother sought to rely on only one ground, Ground A, which contends that the primary judge failed to afford the mother procedural fairness during the hearing and, as a result she was significantly prejudiced. The mother's counsel argued that the primary judge should have adjourned the hearing and in failing to do so denied the mother procedural fairness. The mother's counsel further argued that the mother was not afforded adequate protection during cross-examination; her witness (her grandmother) was not afforded adequate protection during cross-examination; she was not afforded an opportunity to properly re-examine herself or her grandmother without the legal knowledge which, without any doubt, would have been done had the mother been represented; she had no ability to adequately cross-examine the family report writer without sufficient time to prepare to do so; and she had no ability to recall the father for further cross-examination in the circumstances where she had questions to put to the father that her inadequate counsel did not. The mother's counsel submitted that these were ways in which the mother was prejudiced by being required to complete the hearing while unrepresented. The court found that nothing put either in writing or in oral submissions establishes that the primary judge failed to afford the mother procedural fairness and the appeal will be dismissed.

The mother's appeal was not only wholly unsuccessful, it was entirely devoid of merit. The court proposes to make an order as sought being $24,227.

Orders