Martin & Harris - [2007] FamCA 560

FAMILY COURT OF AUSTRALIA

MARTIN & HARRIS

[2007] FamCA 560

FAMILY LAW - APPEAL – PROPERTY - From decision of Federal Magistrate - Whether orders sought by appellant were machinery or substantive orders – Whether, on basis orders capable of enforcement, Federal Magistrate’s discretion miscarried in refusing to proceed with application as one for enforcement - Whether Federal Magistrate failed to afford appellant procedural fairness - Parties varied consent orders by reason of their own actions since the making of the orders – Orders now sought not a necessary follow up to the consent orders – No error by Federal Magistrate – As no error by Federal Magistrate, unnecessary to consider remaining grounds of appeal. Appeal dismissed.

FAMILY LAW - APPLICATION – TO ADDUCE FURTHER EVIDENCE – Contentious material contained in affidavit sought to be adduced – Further evidence sought to be adduced on the appeal available and could have been placed before the Federal Magistrate – No basis for admission of any of the further evidence. Application dismissed.

FAMILY LAW - COSTS – COSTS OF APPEAL – Circumstances do not warrant departure from s 117(1) – Each party to pay own costs of and incidental to appeal.

Family Law Act 1975 (Cth), ss 79 and 94AAA(3)

Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Cranage and Cranage (1981) FLC 91-039
Harvey and Cresswell (1991) FLC 92-232
Ravasini and Ravasini (1983) FLC 93-312
Slapp and Slapp (1989) FLC 92-022

APPELLANT:

Ms Martin

RESPONDENT:

Mr Harris

FILE NUMBER:

SYC

1251

2007

APPEAL NUMBER:

2007

DATE DELIVERED:

8 June 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

8 May 2007 and 21 May 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 March 2007

LOWER COURT MNC:

[2007] FMCAfam 237

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Broun, QC

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

SOLICITOR FOR THE RESPONDENT:

Mr Gallego

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Martin v Harris.

Orders

The appeal is dismissed.
That each party pay his or her own costs of and incidental to the appeal.
That the appellant’s Application in a Case filed 27 April 2007 is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 34 of 2007
File Number: SYC 1251 of 2007

Ms Martin

Appellant

And

Mr Harris

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by the wife against orders made by Federal Magistrate Sexton on 8 March 2007. The effect of her Honour’s decision was to dismiss an application brought by the wife against the husband seeking orders to facilitate enforcement of some provisions of consent orders made under s 79 of the Family Law Act 1975 (Cth) (“the Act”) in 2004.
The appeal was heard by me as a single Judge pursuant…

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 Martin & Harris

Details

AGLC: Martin & Harris [2007] FamCA 560
Case: [2007] FamCA 560
Decision Date: 8 June 2007

CaseChat Overview and Summary

This matter concerned an appeal to the Full Court of the Family Court of Australia from orders made by a Federal Magistrate. The appellant sought to have certain orders enforced, arguing that the Federal Magistrate had erred in refusing to proceed with the application as one for enforcement and had failed to afford the appellant procedural fairness. The core of the dispute revolved around whether the orders sought by the appellant were merely machinery in nature or constituted substantive orders, and whether the parties' subsequent actions had effectively varied the original consent orders.

The primary legal issues before the Full Court were whether the Federal Magistrate had miscarried in their discretion by refusing to treat the application as one for enforcement, and whether procedural fairness had been denied. Additionally, the Court considered an application to adduce further evidence on appeal, which the appellant contended was relevant to the proceedings.

Boland J, delivering the judgment of the Court, found no error in the Federal Magistrate's decision. The Court reasoned that the orders sought by the appellant were not a necessary follow-up to the original consent orders, particularly given that the parties had varied those orders through their own actions since their making. Consequently, the Federal Magistrate’s refusal to proceed with the application as one for enforcement was upheld. As no error was found in the primary decision, the remaining grounds of appeal were rendered unnecessary to consider. The application to adduce further evidence was also dismissed, as the material was available at the time of the original hearing and no basis for its admission on appeal was established.

In relation to costs, the Court ordered that each party was to bear their own costs of and incidental to the appeal, finding that the circumstances did not warrant a departure from the usual rule under section 117(1) of the *Family Law Act 1975* (Cth). The appeal was accordingly dismissed.

Orders