FAMILY LAW - APPEAL – appeal against trial judge’s decision to dismiss the father’s application to re-agitate parenting proceedings – whether the decision of the trial judge not to let the father re-litigate the case was contrary to the best interests of the child – whether his Honour erred in dismissing the father’s application because he misapplied the “threshold” test arising from Rice & Asplund (1979) FLC 90-725 – consideration of the so-called “rule” in Rice & Asplund – appeal allowed – orders set aside – matter remitted for re-hearing.
FAMILY LAW - APPEAL – COURTS AND JUDGES – appeal against trial Judge’s decision not to disqualify himself – no merit found – this ground of appeal failed.
That the appeal against the orders of the Honourable Deputy Chief Justice Faulks made on 28 August 2008 be allowed.
That Orders 2, 4 and 7 of the orders (being the orders dismissing the application of the father for time with the child, ordering costs against the father and removing the matter from the pending cases inventory) be set aside.
That the father’s application about child matters filed on 28 July 2008 be remitted to a single judge of the Family Court of Australia other than the Honourable Deputy Chief Justice Faulks for further hearing.
That prior to the re-listing of the father’s application, the father file and serve on the mother all material upon which he wishes to rely at the hearing, including any reports…
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
Marsden & Winch [2009] FamCAFC 152
Case
[2009] FamCAFC 152
Decision Date
CaseChat Overview and Summary
The appeal involved Marsden, the father, and Winch, the mother, with the dispute centred on the parenting arrangements of their child. The Family Court of Australia heard the case, with the Deputy Chief Justice Faulks presiding. Marsden sought to re-litigate the parenting proceedings, arguing that the previous decisions were not in the child's best interests. He also contested the judge's refusal to disqualify himself from the case. The legal issues the court had to address were whether the judge's dismissal of Marsden's application to re-litigate the parenting proceedings was correct, and whether the judge erred in not disqualifying himself.
The court found that the judge did not misapply the "threshold" test from Rice & Asplund and that the decision to dismiss Marsden's application was contrary to the child's best interests. The court held that the judge's refusal to disqualify himself was justified, and no grounds for disqualification were presented. Consequently, the appeal was allowed, and the orders made by the trial judge were set aside. The matter was to be remitted for a re-hearing before a different judge, with Marsden required to file and serve all relevant material, including expert reports, before the hearing. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981, to be determined by the Attorney-General.
Orders
Orders of the court
1.
That the appeal against the orders of the Honourable Deputy Chief Justice Faulks made on 28 August 2008 be allowed.
2.
That Orders 2, 4 and 7 of the orders (being the orders dismissing the application of the father for time with the child, ordering costs against the father and removing the matter from the pending cases inventory) be set aside.
3.
That the father’s application about child matters filed on 28 July 2008 be remitted to a single judge of the Family Court of Australia other than the Honourable Deputy Chief Justice Faulks for further hearing.
4.
That prior to the re-listing of the father’s application, the father file and serve on the mother all material upon which he wishes to rely at the hearing, including any reports of experts that he wishes to put before the Court.
5.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 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 the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
6.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 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 the respondent mother in respect of the costs incurred by the respondent mother 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 (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 such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these orders.