P & L

Case [2006] FamCA 947 28 September 2006

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FAMILY COURT OF AUSTRALIA

P AND L

[2006] FamCA 947

APPEAL – Against orders of Steele J – Whether denial of procedural fairness to appellant – Whether trial judge failed to give adequate reasons for decision - Whether trial judge in error in dismissing the application of the appellant and removing matter from pending cases list – Transcript indicates application dealt with in its entirety –– Unable to discern any appealable error by trial judge – Appeal must fail.

APPEAL - Against orders of Lawrie J – Whether trial judge failed to appropriately exercise jurisdiction - Whether trial judge in error in failing to deal with injunctive relief sought by appellant restraining respondent taking children to particular church - Appellant wrongly interpreted trial judge’s reasons as failing to deal with the relief sought in appellant’s application as to do so would be inimical to s 116 of the Constitution - Consideration of principles relating to best interests of a child and effect of a parent’s religious beliefs on welfare of a child – Consideration of H and H [1998] FamCA 7 and principles considered therein – No conflict between these principles and reasoning of trial judge - No merit in this ground of appeal – Whether ‘miscarriage of justice by reason of fraud’ or inadequacy of reasons - Appellant referred to changed circumstances - Whether appellant denied procedural fairness – Absent transcript unable to determine whether appellant’s assertions have merit – Whether ‘suppression of evidence’ by trial judge – Appellant asserted insufficient time allowed for cross examination of two witnesses he had subpoenaed – Trial judge had regard to relevant affidavit material – No merit in this ground.

APPLICATION – By respondent for summary dismissal - Appellant’s grounds of appeal not entirely hopeless – Inappropriate to summarily dismiss appellant’s appeals.

APPLICATION – For leave to appeal orders of Le Poer Trench J – Consideration of appellant’s proposed grounds of appeal – Whether failure by trial judge to give adequate reasons – Whether jurisdictional error by trial judge in not assuming jurisdiction to deal with appellant’s allegations about the Potter’s House Church adversely influencing children’s welfare – Proceedings before the trial judge were contravention proceedings and not proceedings instituted by appellant for parenting orders or injunctive relief – No merit in these grounds - Whether denial of natural justice to appellant’s child – Child’s views were directly made known to trial judge – No breach of rules of natural justice - Whether failure by trial judge to consider relevant sections of the Act and case law in respect of best interests of children – Application before trial judge was one relating to contravention – Trial judge’s reasoning readily discernible – Not necessary for trial judge to refer to specific factors under s 68F(2) – Appellant’s other grounds of appeal do not demonstrate comprehensible or intelligible grounds of appeal – Whether leave required to appeal orders of Le Poer Trench J of 5 September 2005 – As primary matter a contravention, not…

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: P & L [2006] FamCA 947
Case: [2006] FamCA 947
Decision Date: 28 September 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Bryant CJ, Warnick and Boland JJ, considered multiple appeals and applications brought by the appellant. The appellant sought to appeal orders made by Steele J, Lawrie J, and Le Poer Trench J, and also sought leave to appeal costs orders made by Finn J. The underlying disputes involved allegations of contravention proceedings, parenting orders, and injunctive relief concerning the religious upbringing of children.

The primary legal issues before the Full Court were whether the appellant had been denied procedural fairness, whether the trial judges had failed to give adequate reasons for their decisions, whether the trial judges had erred in exercising their jurisdiction, and whether there had been a miscarriage of justice by reason of fraud or suppression of evidence. The court also considered whether leave to appeal was required for certain orders and whether an extension of time should be granted for an appeal against a costs order.

The Full Court found no merit in most of the appellant's grounds of appeal. Regarding the appeal against Steele J's orders, the court could not discern any appealable error. In relation to Lawrie J's orders, the court determined that the appellant had misinterpreted the judge's reasons concerning injunctive relief, which was correctly not granted as it would have been inimical to s 116 of the Constitution. The court also found no conflict with principles regarding the best interests of a child and a parent's religious beliefs. The court noted that without a transcript, it could not assess the appellant's assertions of procedural unfairness or suppression of evidence. Concerning Le Poer Trench J's orders, the court held that the proceedings were contravention proceedings, not parenting applications, and therefore the judge had not erred in his jurisdiction. The court also found that the child's views had been made known and that the judge's reasoning was discernible. Leave to appeal these orders was refused. The application for an extension of time to appeal Finn J's costs order was also dismissed.

The Full Court ordered that the appellant pay the respondent's costs, noting that the appellant had been entirely unsuccessful in his appeals and applications.

Orders