Naparus & Frankham

Case [2020] FamCAFC 32

FAMILY COURT OF AUSTRALIA

NAPARUS & FRANKHAM [2020] FamCAFC 32

FAMILY LAW – APPEAL – PARENTING – Procedural Fairness – Where the parties’ mental health was in issue – Where the primary judge relied on the report of a psychiatrist determining the father was of sound mental health – Where that report was only given to the mother on the morning of the trial – Where the mother objected to the primary judge’s receipt of that report – Where that objection was not determined – Where the mother then sought to cross examine that psychiatrist but was denied the opportunity – Consideration of a litigant’s right to cross examine a witness – Where it cannot be said that such cross examination could not have materially affected the outcome – Where it is unnecessary to consider the remaining grounds of appeal – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on a point of law – Where both parties sought costs certificates – Where the circumstances warrant a costs certificate for each party.

Evidence Act 1995 (Cth) s 26
Family Law Act 1975 (Cth) Part IV
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Boensch v Pascoe (2019) 94 ALJR 112; [2019] HCA 49
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
LGM & CAM [2008] FamCA 185

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
APPELLANT: Ms Naparus
RESPONDENT: Mr Frankham
INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers
(Did not participate)
FILE NUMBER: MLC 1462 of 2016
APPEAL NUMBER: SOA 10 of 2019
DATE DELIVERED: 18 February 2020
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Alstergren CJ, Kent & Austin JJ
HEARING DATE: 19 July 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 28 February 2019
LOWER COURT MNC: [2019] FCCA 434

REPRESENTATION

THE APPELLANT: Self-represented
COUNSEL FOR THE RESPONDENT: Mr Moore
SOLICITOR FOR THE RESPONDENT: Nick Graham Legal
THE INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers
(Did not participate)

Orders

  1. The Application in an Appeal to adduce further evidence filed on 28 June 2019 be dismissed.

  2. The appeal be allowed and the orders made on 28 February 2019 be set aside.

  3. The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

  4. The Court grants to the appellant mother 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 mother in respect of the costs incurred by her in relation to the appeal.

  5. The Court grants to the respondent father a costs certificate pursuant to the provisions of…

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Naparus & Frankham [2020] FamCAFC 32
Case
[2020] FamCAFC 32
Decision Date

CaseChat Overview and Summary

In the matter of Naparus & Frankham, the Court of Appeal addressed an appeal against a decision made by the Federal Circuit Court of Australia regarding parenting arrangements. The primary issue was whether the trial judge had adhered to procedural fairness by allowing the reception of a late-disclosed psychiatric report and denying the mother's right to cross-examine the psychiatrist. The mother argued that the procedural unfairness in the primary judge's handling of the psychiatric evidence significantly impacted the outcome of the case. The appeal court found that the procedural errors were substantial enough to warrant a rehearing of the case, as the denial of cross-examination could have materially affected the outcome. Consequently, the appeal was allowed, and the matter was remitted to the Federal Circuit Court for rehearing by a different judge.

The appeal court meticulously reviewed the grounds of appeal, focusing on the procedural fairness and the mother's right to challenge the psychiatric evidence. The court concluded that the procedural errors were not trivial and that the mother's right to cross-examine the psychiatrist was a fundamental aspect of a fair trial. The court held that it was not necessary to consider other grounds of appeal as the identified procedural errors were sufficient to set aside the primary decision. The Court of Appeal determined that the appeal succeeded on a point of law, which justified the granting of costs certificates to both parties for their respective costs incurred during the appeal and the anticipated rehearing.

In light of the findings, the Court of Appeal dismissed the mother's application to adduce further evidence, allowed the appeal, and set aside the orders made by the primary judge. The Court further ordered that the proceedings be remitted to the Federal Circuit Court for rehearing by a different judge. Additionally, the Court granted costs certificates to both parties. The mother received a certificate under section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs incurred in relation to the appeal, while the father received a certificate under section 6 of the same Act for his appeal costs. Both parties were also granted certificates under section 8 of the Act for the costs expected to be incurred in the rehearing. The form of the orders was subject to formal entry in the Court's records.

Orders

Orders of the court

1.

The Application in an Appeal to adduce further evidence filed on 28 June 2019 be dismissed.

2.

The appeal be allowed and the orders made on 28 February 2019 be set aside.

3.

The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge.

4.

The Court grants to the appellant mother 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 mother in respect of the costs incurred by her in relation to the appeal.

5.

The Court grants to the respondent father 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 father in respect of the costs incurred by him in relation to the appeal.

6.

The Court grants to each of the parties a costs certificate pursuant to 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 of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

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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