Menno & Lourens

Case [2024] FedCFamC1A 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Menno & Lourens [2024] FedCFamC1A 68

Appeal from:

Menno & Lourens [2023] FedCFamC2F 1582

Menno & Lourens (No 2) [2023] FedCFamC2F 1756
Appeal number: NAA 368 of 2023
File number: MLC 7320 of 2016
Judgment of: SCHONELL J
Date of judgment: 30 April 2024
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the primary judge had regard to documents that neither party had sought to rely upon – Where the parties were not given notice by the primary judge that she would have regard to those documents in her determination – Consideration of Macgregor & Macgregor (2012) FLC 93-507 – Error of law established – Appeal upheld – Costs certificates granted.
Legislation:

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Crabman v Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Macgregor & Macgregor (2012) FLC 93-507; [2012] FamCAFC 69

Neil v Nott (1994) 68 ALJR 509; [1994] HCA 23

Shell & Armel [2022] FedCFamC 1A 83

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Cases cited: Federal Circuit and Family Court of Australia Act 2021 (Cth)
Number of paragraphs: 24
Date of hearing: 30 April 2024
Place: Melbourne
Counsel for the Appellant: Litigant in person
Solicitor for the Respondent: Mr Weerappah, Bayside Solicitors

ORDERS

NAA 368 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MENNO

Appellant
AND:

MS LOURENS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

30 APRIL 2024

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The Application in an Appeal filed 16 January 2024 is dismissed.

3.The Orders made by the Federal Circuit and Family Court of Australia (Division 2) on 7 December 2023 including the order as to costs are set aside.

4.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

5.The appellant is granted a costs certificate pursuant to 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 respondent in respect of the costs incurred by him in the appeal.

6.The respondent is granted a costs certificate pursuant to 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 her in the appeal.

7.The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that,…

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AGLC
Menno & Lourens [2024] FedCFamC1A 68
Case
[2024] FedCFamC1A 68
Decision Date

CaseChat Overview and Summary

The case of Menno & Lourens involved an appeal against a decision made by the Federal Circuit and Family Court of Australia, concerning parenting arrangements for their child. The appellant, Mr Menno, sought to vary the existing orders, which provided for equal shared parental responsibility and the child to live primarily with the mother. The appeal focused on whether the primary judge erred in considering certain documents and whether procedural fairness was upheld during the hearing. The respondent, Ms Lourens, argued that the appeal was incompetent but did not contest the specific grounds raised by the appellant.

The key legal issues addressed by the court were whether the primary judge correctly exercised her discretion in considering documents that neither party had relied upon and whether she provided adequate notice to the parties that she intended to consider such documents. Additionally, the court considered whether the primary judge erred in failing to give appropriate weight to the evidence presented by the appellant.

The court found that the primary judge had erred in considering documents that neither party had relied upon and that she had not given adequate notice to the parties of her intention to do so. This constituted an error of law and affected the integrity of the judicial process. The court also noted that the primary judge's cursory submissions did not adequately address the evidence and submissions made by the parties. The appeal was allowed on these grounds, and the orders made by the primary judge were set aside.

The court granted costs certificates to both parties in relation to the appeal and the anticipated rehearing. The matter was remitted for rehearing before a different judge of the Federal Circuit and Family Court of Australia. This decision underscores the importance of procedural fairness and the proper exercise of judicial discretion in family law proceedings.

Orders

Orders of the court

NAA 368 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MENNO

Appellant

AND:

MS LOURENS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

30 APRIL 2024

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The Application in an Appeal filed 16 January 2024 is dismissed.

3. The Orders made by the Federal Circuit and Family Court of Australia (Division 2) on 7 December 2023 including the order as to costs are set aside.

4. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

5. The appellant is granted a costs certificate pursuant to 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 respondent in respect of the costs incurred by him in the appeal.

6. The respondent is granted a costs certificate pursuant to 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 her in the appeal.

7. The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The Amended Notice of Appeal and Summary of Argument in support were filed on the same day. Some of the subparts in the Amended Notice of Appeal were either departed from in the Summary of Argument, not argued at all, or were presented in the Summary of Argument in support of one ground when it addressed another. No issue was taken by the respondent, other than to contend that the amended Notice of Appeal was “completely inappropriate and incompetent” (respondent’s Summary of Argument filed 6 March 2024, page 1). Accordingly, I am satisfied that the respondent is not prejudiced by such an approach.BACKGROUND The parties are the parents of their one child, X (“the child”) who is currently eight years old. The parties commenced a relationship in or about April 2015, and separated on a final basis when the child was three weeks old. Litigation commenced very shortly thereafter, and on 15 July 2019, final orders were made. Those final orders provided for equal shared parental responsibility, the child to live with the mother, and for the child to spend time with the father each alternate weekend and half school holidays. On 23 January 2023, the appellant filed an Initiating Application, seeking to set aside the existing arrangements and provide for the child to live with him, for him to have sole parental responsibility, and for the child to live with the respondent each alternate weekend and half school holidays. The parties respective Case Outlines identified the relevant documents relied upon by each of them. These were identified by the primary judge as the Initiating Application of the appellant filed 23 January 2023, his two affidavits filed 23 January 2023 and 25 October 2023, and Case Outline filed 23 January 2023. The respondent relied upon her Response to Final Orders, affidavit filed 6 October 2023, and Case Outline filed 25 October 2023. At the hearing, the father’s counsel urged the primary judge to permit cross-examination, submitting that it would assist in the determination of the application. The primary judge acceded to counsel’s request. Following cross examination, the primary judge heard what can only be described as cursory submissions. The primary judge reserved her decision and subsequently delivered written reasons on 7 December 2023. The primary judge found that a change of circumstances was established sufficient to vary only the order for equal shared parental responsibility but not otherwise. The primary judge ordered that the mother have sole parental responsibility, varied some other orders to give effect to such an order, made an order the appellant to pay the respondent’s costs, and dismissed the appellant’s Initiating Application filed 23 January 2023.GROUNDS OF APPEAL As stated earlier, I propose to deal first with those grounds that are said to challenge the integrity of the judicial process. As identified, there are a number of grounds each with numerous subparts. While they were argued in a different order, for reasons which will become apparent, I propose to firstly deal with Grounds 3 and 4.3The learned judge relied on evidence that was not relied upon by the Respondent or Appellant.a.In the learned judge’s judgment, the learned judge relied on 3 different documents that were not relied upon by either party.b. The learned judge allowed new evidence to be produced by Respondent’s counsel during cross examination of the Appellant. Procedural fairness denied to Appellant.4 The learned judge failed to give appropriate weight to evidence.

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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