MORDECH & MORDECH - [2018] FamCAFC 15

FAMILY COURT OF AUSTRALIA

MORDECH & MORDECH

[2018] FamCAFC 15

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Parenting –Whether the respondent was denied natural justice by not being permitted to amend her response – Procedural fairness – Orders made without advance notice – Where the respondent is bound by the manner in which the case was conducted – Where the appeal raises no question of general principle – Appeal dismissed.

Family Law Act 1975 (Cth) ss 13C, 13C(5), 13D, 61C(1), 69ZW, 94AAA(3), 94AAA(7)
Federal Circuit Court Rules 2001 rr 16.01, 16.05(1)

Keenon & Keenon [2008] FamCAFC 58
Metwally v University of Wollongong (1985) 158 CLR 447
Robinson & Higginbotham (1991) FLC 92-209
Stephens & Stephens and Anor (Enforcement) (Costs) (2010) 44 Fam LR 117

APPELLANT:

Ms Mordech

RESPONDENT:

Mr Mordech

FILE NUMBER:

WOC

780

2015

APPEAL NUMBER:

115

2017

DATE DELIVERED:

2 February 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

24 January 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 October 2017

LOWER COURT MNC:

[2017] FCCA 2950

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Dart

SOLICITOR FOR THE APPELLANT:

Hansons Lawyers

THE RESPONDENT:

In person

Orders

The appeal be dismissed.
Each party pay their own costs of and incidental to the appeal.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mordech & Mordech has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 115 of 2017
File Number: WOC 780 of 2015

Ms Mordech

Appellant

And

Mr Mordech

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Mordech (“the mother”) and Mr Mordech (“the father”) are the parents of X (“the child”) who was born in January 2012. The father filed an application for parenting orders on 1 June 2017. The mother joined issue with that application and on 28 August 2017 she filed a response as well as an application for leave to pursue a child support departure application. Leave was required because the administrative processes for departure had not been completed.
The proceedings came before Judge Harman for directions on 30 August 2017. Notwithstanding an objection by the father, his Honour granted permission for the inspection of documents produced under subpoena. However, as the solicitor for the father had been injured that morning it was necessary for the balance of the matter to be adjourned, which it was, to 17 October 2017. Final orders were made on 17 October 2017 against…

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

Case: [2018] FamCAFC 15
Decision Date: 2 February 2018

CaseChat Overview and Summary

The appeal before the court was between Mordech and Mordech, where the respondent, Mordech, sought to appeal certain decisions made in relation to a parenting matter. The primary concern was whether the respondent was denied natural justice by not being permitted to amend her response. Additionally, the appeal addressed issues of procedural fairness and whether orders were made without giving the respondent advance notice. The case was heard in the Family Court of Australia, which has jurisdiction over family law matters, including parenting disputes.

The court needed to decide whether the respondent's rights to natural justice were infringed by not allowing her to amend her response. It also had to consider whether the procedural fairness was upheld when the respondent was not given advance notice of certain orders. The appeal further questioned whether the respondent was bound by the manner in which the case was conducted and if the appeal raised any questions of general principle that warranted consideration.

The court found that the appeal did not raise any question of general principle and was bound by the manner in which the case was conducted. It concluded that the respondent had not been denied natural justice and that the procedural fairness was maintained. Consequently, the appeal was dismissed, and each party was ordered to pay their own costs of and incidental to the appeal. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

Each party pay their own costs of and incidental to the appeal.

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

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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