MCDONALD & SANDLER - [2012] FamCAFC 191

FAMILY COURT OF AUSTRALIA

MCDONALD & SANDLER

[2012] FamCAFC 191

FAMILY LAW ─ APPEAL ─ PROCEDURE ─ Appeal against orders made by the Federal Magistrate summarily dismissing an application by the appellant in parenting proceedings ─ Whether the Federal Magistrate decided the summary dismissal application by reference to the substance of the principles governing such applications, and, whether, prior to doing so, her Honour sufficiently informed the appellant of the basis upon which she would decide the application to summarily dismiss his application ─ Where the Court rejected the challenge to the Federal Magistrate’s refusal to adjourn the proceedings as the appellant requested ─ Where the Court was not persuaded that the evidence before the Federal Magistrate necessarily established that the appellant’s application for variation of the existing parenting orders was necessarily doomed to fail, or was hopeless, although, the prospects of success appeared extremely limited ─ Where the Court reluctantly concluded that the substantive provisions of the test governing applications for summary dismissal, were not adequately conveyed to the appellant during the course of the hearing, or applied in the determination of the summary dismissal application ─ Where the Court was unable to accept that the proceedings could have had no other outcome ─ Where notwithstanding that the appellant’s own application, and evidence in support of it at trial, contributed materially to what this Court has found to be the Federal Magistrate’s error, the appeal was allowed, and the application for summary dismissal remitted to the Federal Magistrates Court for re-determination.

FAMILY LAW ─ APPEAL ─ COSTS ─ Costs certificates awarded to the parties with respect to the appeal, and the re-hearing of the summary dismissal application.

Family Law Act 1975 (Cth) ss 69ZN, 70NBA

CDJ v VAJ (1998) 197 CLR 172
DL & W [2012] FamCAFC 5
Lindon v Commonwealth(No 2) (1996) 136 ALR 251
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice and Asplund (1979) FLC 90-725
Stead v State Government Insurance Commission (1986) 161 CLR 141
Walton v Gardiner (1993) 177 CLR 378

APPELLANT:

Mr McDonald

RESPONDENT:

Ms Sandler

FILE NUMBER:

CAC

472

2012

APPEAL NUMBER:

2012

DATE DELIVERED:

15 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Coleman J

HEARING DATE:

1 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

29 June 2012

LOWER COURT MNC:

[2012] FMCAfam 654

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Howard

SOLICITOR FOR THE APPELLANT:

Joseph Tallarita

COUNSEL FOR THE RESPONDENT:

Ms Lane

SOLICITOR FOR THE RESPONDENT:

Clancy & Triado

Orders

That the appeal be allowed.
That the orders of Federal Magistrate Whelan made on 28 May 2012 be set aside.
That the application filed 29 March 2012 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Whelan.
That the Court grants to the Appellant 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,…

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: MCDONALD & SANDLER [2012] FamCAFC 191
Case: [2012] FamCAFC 191
Decision Date: 15 November 2012

CaseChat Overview and Summary

The appeal before the Court was brought by the appellant, McDonald, against orders made by the Federal Magistrate summarily dismissing his application in parenting proceedings. The respondent, Sandler, sought the dismissal of the appeal and the enforcement of the Federal Magistrate's orders. The Court was required to determine whether the Federal Magistrate correctly applied the principles governing summary dismissal applications and whether the appellant was adequately informed of the basis upon which the application would be decided. The Court also had to assess whether the Federal Magistrate's refusal to adjourn the proceedings was justified and whether the evidence necessarily established that the appellant's application was doomed to fail.

The Court found that the Federal Magistrate did not adequately convey or apply the substantive provisions of the test governing applications for summary dismissal. The Court was not persuaded that the evidence established that the appellant's application was necessarily doomed to fail, although the prospects of success appeared extremely limited. The Court reluctantly concluded that the proceedings could have had a different outcome if the correct principles had been applied. Despite the appellant's own application and evidence contributing to the Federal Magistrate's error, the appeal was allowed, and the application for summary dismissal was remitted to the Federal Magistrates Court for re-determination.

The Court granted costs certificates to both parties, allowing the Attorney-General to authorise payments for costs incurred in relation to the appeal and the re-hearing of the summary dismissal application. The Court set aside the orders made by the Federal Magistrate and remitted the application for re-hearing before a different Federal Magistrate.

The final orders of the Court were to allow the appeal, set aside the orders made by the Federal Magistrate, remit the application for re-hearing, and grant costs certificates to both parties. The costs certificates would allow the Attorney-General to authorise payments for costs incurred in relation to the appeal and the new trial.

Orders

Orders of the court

That the appeal be allowed.

That the orders of Federal Magistrate Whelan made on 28 May 2012 be set aside.

That the application filed 29 March 2012 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Whelan.

That the Court grants to the Appellant 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 in respect of the costs incurred by the Appellant in relation to the appeal.

That the Court grants to the Respondent 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 in respect of the costs incurred by the Respondent in relation to the appeal.

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 trial granted by these orders.

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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