FAMILY LAW – APPEAL – FROM DECISION OF FAMILY COURT JUDGE – Rule in Rice v Asplund – Procedural Fairness – where there was confusion as to the nature of the proceedings – where disputed factual matters were considered in a summary way – where the Trial Judge considered matters outside the parameters of the application to dismiss pursuant to the rule in Rice v Asplund – where the mother had no proper opportunity to respond to the broader enquiry – Appeal allowed – Re-exercise of discretion – Analysis of the approach to the rule in Rice v Asplund –no material change in the circumstances of the children – central matters before the Trial Judges continue to pertain – in the bests interests of the children the litigation should not continue – on the re-exercise of discretion order in accordance with the Trial Judge – Appeal dismissed – parties to make written submissions as to costs
Family Law Act 1975 (Cth);s 65D(2); s 69ZM; s 69ZN(3); s 69ZN(5); s 69ZQ(1)(a); s 69ZQ(1)(g); s 69ZR(1); s 69ZR(2)
Allesch v Maunz (2000) 203 CLR 172 Bain Pacific Associations and Ors & Kelly & Ors (2006) FLC 93-270 Bigg v Suzi (1998) FLC 92-799 Collivas & Cassimatis [2007] FMCAFam 293 In the Marriage of Rice and Asplund (1979) FLC 90-725 King & Finneran (2001) FLC 93-079 L & L (1992) FLC 92-274 Newling and Mole (1987) FLC 91-856 Saad & Saad (1993) FLC 92-332 SPS and PLS (2008) FLC 93-363
The appeal against orders 1 and 2 of the Orders made by Barry J on 31 July, 2007 be dismissed;
That the appellant mother file any further submissions in respect of paragraph 3 of the said orders of Barry J in writing within 21 days of the date of our orders; the respondent father and Independent Children’s Lawyer file any such submissions within a further 21days after that and the appellant any submissions in reply within 7 days thereafter.
That each party endorse on the cover sheet of any submissions filed pursuant to Order 3, the date upon which a copy of that submission was served on the other party.
That a determination of the costs of the appeal await the further submissions contemplated by Order 3 and this Court’s order in respect thereof.
IT IS…
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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AGLC
Miller v Harrington [2008] FamCAFC 150
Case
[2008] FamCAFC 150
Decision Date
CaseChat Overview and Summary
The matter before the court was an appeal against orders made by the Family Court of Australia in proceedings concerning the care and custody of children. The appellant, the mother, sought to appeal from the decision of the Family Court Judge, Barry J, which had dismissed her application to dismiss the father’s application pursuant to the rule in Rice v Asplund. The central issue for the court was whether the Trial Judge had erred in law by considering matters outside the parameters of the application and whether the mother had been afforded procedural fairness.
The court considered whether the Trial Judge had properly exercised his discretion in relation to the application under the rule in Rice v Asplund. The court found that there had been confusion as to the nature of the proceedings and that the Trial Judge had considered disputed factual matters in a summary way. The court held that the mother had not been given a proper opportunity to respond to the broader enquiry and that the Trial Judge had considered matters outside the parameters of the application. The court concluded that the Trial Judge had not properly exercised his discretion and that the matter should be re-exercised. However, the court found that there had been no material change in the circumstances of the children and that the central matters before the Trial Judges continued to pertain. The court held that in the best interests of the children, the litigation should not continue and dismissed the appeal.
The court allowed the appeal against orders 1 and 2 of the Orders made by Barry J on 31 July, 2007, and dismissed the appeal against order 3. The court ordered that the appellant mother file any further submissions in respect of paragraph 3 of the said orders within 21 days of the date of the court's orders. The court also ordered that the respondent father and Independent Children’s Lawyer file any such submissions within a further 21 days after that, and the appellant any submissions in reply within 7 days thereafter. The court ordered that each party endorse on the cover sheet of any submissions filed, the date upon which a copy of that submission was served on the other party. The court held that a determination of the costs of the appeal would await the further submissions and the court's order in respect thereof.
Orders
Orders of the court
1.
The appeal against orders 1 and 2 of the Orders made by Barry J on 31 July, 2007 be dismissed;
2.
That the appellant mother file any further submissions in respect of paragraph 3 of the said orders of Barry J in writing within 21 days of the date of our orders; the respondent father and Independent Children’s Lawyer file any such submissions within a further 21days after that and the appellant any submissions in reply within 7 days thereafter.
3.
That each party endorse on the cover sheet of any submissions filed pursuant to Order 3, the date upon which a copy of that submission was served on the other party.
4.
That a determination of the costs of the appeal await the further submissions contemplated by Order 3 and this Court’s order in respect thereof.