MARINO and HODNEY - [2016] FCWA 29

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: MARINO and HODNEY [2016] FCWA 29

CORAM: O'BRIEN J

HEARD: 9 MAY 2016

DELIVERED : 9/05/2016

FILE NO/S: PTW 2965 of 2014

BETWEEN: MR MARINO
Applicant
AND
MS HODNEY
Respondent

Catchwords:

Appeal against orders of a Family Law Magistrate exercising non-federal jurisdiction - where relevant orders final and not interlocutory - no jurisdiction - appeal dismissed.

Legislation:

Family Court Act 1997 (WA), s 5, s 205Z, s 205ZG, s 209A, s 210A, s 211, s 211B

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Ms Farmer

Solicitors:

Applicant: Self Represented Litigant
Respondent: Lavan Legal

Case(s) referred to in judgment(s):

CDW v LVE [2015] WASCA 247
MCG v JM [2016] WASCA 75

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The matter before the court is the Form 20 notice of appeal filed by [Mr Marino] on 10 March 2016. By the filing of that notice he seeks to appeal the orders made by Magistrate Sutherland on 12 February 2016 and, if necessary, seeks the appropriate leave to appeal. The orders made by Magistrate Sutherland on 12 February 2016 followed a trial which took place from 23 to 25 November 2015.
2Her Honour’s reasons for decision were published to the parties together with proposed orders under cover of a letter dated 14 January 2016. At the same time the matter was relisted for orders to be made in court on 12 February 2016. At the hearing on 12 February 2016 an order was made, as foreshadowed in the published reasons, dismissing the Form 1 application filed on 27 May 2014 by Mr Marino for want of jurisdiction.
3A further order was made that save for the issue of costs, all outstanding proceedings otherwise be dismissed. For convenience I will refer to those as being the substantive orders.
4The balance of the orders made by Magistrate Sutherland on 12 February 2016 were procedural in nature. They set a timetable for the filing by each party of submissions in relation to the issue of costs and for the relisting of the costs issue for oral submissions if requested.
5The only other order made was purely administrative in nature, providing for subpoenas and exhibits produced at trial to be returned to source or destroyed.
6The notice of appeal filed by Mr Marino does not contain grounds of appeal in the usual sense. The document does, however, set out the complaints that Mr Marino makes in relation to her Honour’s reasons for decision, her findings and the substantive orders made by her. The document also makes clear, notwithstanding the indication at Part D of the notice that Mr Marino proposes to appeal all of the orders made on 12 February 2016, that his primary intention, if I can call it that, was to appeal against the orders which I have described as the substantive orders made…

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 MARINO and HODNEY

Details

AGLC: MARINO and HODNEY [2016] FCWA 29
Case: [2016] FCWA 29
Decision Date: 9/05/2016

CaseChat Overview and Summary

The case of Marino and Hodney involved the parents of two children, Marino (the father) and Hodney (the mother). They were in dispute over the care and control of their children. The matter was brought before the Family Court of Australia, which exercised its non-federal jurisdiction to hear the case. The legal dispute primarily revolved around the orders made by a Family Law Magistrate regarding the care and control of the children, which were deemed final and not interlocutory. The father sought to appeal against these orders, arguing various points of law and fact.

The court was required to decide whether it had the jurisdiction to hear the appeal against the final orders of the Family Law Magistrate. The legal issues centred on the nature of the orders and the jurisdiction of the court to hear appeals against such final and conclusive orders. The court had to consider whether the appeal was within its jurisdiction and whether it could entertain an appeal against the final orders that had already been made.

The Family Court of Australia held that it did not have jurisdiction to hear the appeal against the final orders made by the Family Law Magistrate. The court reasoned that the orders in question were final and not subject to interlocutory appeal. Given that the appeal was against final orders, and the appeal was not interlocutory, the court concluded that it lacked the necessary jurisdiction to entertain the appeal. Consequently, the appeal was dismissed.

The final orders of the court were that the appeal was dismissed, and the father's appeal against the final orders of the Family Law Magistrate was not upheld. The court affirmed the jurisdiction limitations in cases involving final orders and underscored the importance of adhering to the jurisdictional framework when seeking to appeal such decisions.

Orders