FAMILY LAW – APPEAL – practice and procedure – procedural fairness – where Federal Magistrate used academic literature to underpin findings of alienation by one parent against the other – where Federal Magistrate relied upon academic literature as a basis for orders – no forewarning to parties as to use of material – no opportunity to reply – appeal upheld – remitted for rehearing by another Federal Magistrate.
FAMILY LAW – CHILDREN – with whom children live – children’s views – failure to allow evidence of children’s views based on academic writings.
FAMILY LAW – EVIDENCE – judicial notice discussed – expert evidence – opinion evidence – failure to properly admit academic opinions – unfair prejudice.
FAMILY LAW – PROPERTY – contributions – where Federal Magistrate did not properly explain treatment of various contributions of the parties and the weight to be attached to those contributions.
FAMILY LAW – COSTS – appellant’s success on appeal arose because of errors by Federal Magistrate – appropriate to grant certificates to both parties under Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.
The appeal be allowed in relation to parenting and property orders.
The orders, both as to parenting and property, of Federal Magistrate O’Dwyer of 23 September 2010 be set aside.
The applications for parenting and property orders are remitted to the
Federal Magistrates Court for rehearing before a Federal Magistrate other than Federal Magistrate O’Dwyer.
Until further…
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
McGregor & McGregor [2012] FamCAFC 69
Case
[2012] FamCAFC 69
Decision Date
CaseChat Overview and Summary
This case involved an appeal against the parenting and property orders made by a Federal Magistrate in relation to a family law matter. The appeal was brought by the father, who challenged the decisions made by the Federal Magistrate in a number of respects. The appeal was heard and determined by the Family Court of Australia.
The central legal issues before the court were whether the Federal Magistrate had erred in admitting and relying on academic literature in making findings of alienation by one parent against the other, and in failing to allow evidence of the children's views based on academic writings. The court also considered whether the Federal Magistrate had properly admitted expert opinion evidence and whether there had been errors in the treatment of the parties' contributions to the property pool. The father further contended that the Federal Magistrate had failed to properly explain the treatment of various contributions and the weight to be attached to those contributions.
The court found that the Federal Magistrate had erred in relying on academic literature to underpin findings of alienation without forewarning the parties or providing them with an opportunity to reply. The court held that this was a failure of procedural fairness. The court also found that the Federal Magistrate had erred in failing to allow evidence of the children's views based on academic writings, and in not properly admitting expert opinion evidence. The court found that these errors were unfair and prejudicial to the father. The court further found that the Federal Magistrate had not properly explained the treatment of the parties' contributions to the property pool and the weight to be attached to those contributions.
The appeal was allowed in relation to the parenting and property orders. The orders made by the Federal Magistrate were set aside and the applications for parenting and property orders were remitted to be heard by another Federal Magistrate. The court granted certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing.
Orders
Orders of the court
1.
The appeal be allowed in relation to parenting and property orders.
2.
The orders, both as to parenting and property, of Federal Magistrate O’Dwyer of 23 September 2010 be set aside.
3.
The applications for parenting and property orders are remitted to the