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Quant & Bonde

Quant & Bonde

Case [2018] FamCAFC 150 10 August 2018

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FAMILY COURT OF AUSTRALIA

QUANT & BONDE

[2018] FamCAFC 150

FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – where the trial judge delivered brief ex tempore reasons for judgment and later published “Addendum” reasons – where the “Addendum” reasons substantially added to the content and effect of the reasons delivered extemporaneously – where only the parties can relieve a judicial officer from the obligation to provide adequate reasons – where the obligation is not discharged by purporting to provide adequate reasons upon specific request of either party – where the trial judge erred in purporting to deliver “Addendum” reasons at a subsequent time to the ex tempore reasons delivered – where the trial judge erred in purporting to deliver reasons other than in open court – where the respondent acknowledged errors of law made by the trial judge during the hearing of the appeal and withdrew her opposition to the appeal – appeal allowed.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – where the appellant was not afforded any opportunity to cross-examine the respondent or make final submissions prior to the dismissal of his application with indemnity costs – where a party to litigation has a prima facie entitlement to have an opportunity to be heard before an order affecting some right, interest, entitlement or privilege of the party is made – where the trial judge fundamentally failed to provide the appellant with procedural fairness.

Family Law Act 1975 (Cth) ss 4AA, 90SM
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kyriakos & Kyriakos (2013) FLC 93-528; [2013] FamCAFC 22
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Richmond v BMW Australia Finance Limited (No 2) (2009) 174 FCR 232; [2009] FCAFC 25
Sargent & Selwyn (2017) FLC 93-812; [2017] FamCAFC 228
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7

APPELLANT:

Mr Quant

RESPONDENT:

Ms Bonde

FILE NUMBER:

BRC

4907

2016

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

10 August 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy, Aldridge & Kent JJ

HEARING DATE:

31 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 August 2017

LOWER COURT MNC:

[2017] FCCA 2520

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Waterman

SOLICITOR FOR THE RESPONDENT:

Jones Leach Lawyers

Orders made 31 July 2018

The Application in an Appeal filed by the appellant on 16 July 2018 be dismissed.
Leave be given for the respondent to rely upon her Summary of Argument filed 30 April 2018.
The appeal be allowed.
The orders made by Judge Vasta on…

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.

Continue reading Quant & Bonde

Details

AGLC: Quant & Bonde [2018] FamCAFC 150
Case: [2018] FamCAFC 150
Decision Date: 10 August 2018

CaseChat Overview and Summary

The appeal in Quant & Bonde was brought before the court by the appellant, challenging a decision made in family law proceedings. The dispute centred on the adequacy of the reasons provided by the trial judge for his decision, as well as the procedural fairness afforded to the appellant during the proceedings. The appellant argued that the trial judge's ex tempore reasons for judgment were insufficient and that the "Addendum" reasons, provided later, significantly altered the content and effect of the initial decision. Additionally, the appellant claimed that he was not given the opportunity to cross-examine the respondent or make final submissions before the dismissal of his application, resulting in a denial of procedural fairness.

The primary legal issues before the court were whether the trial judge's subsequent "Addendum" reasons adequately addressed the deficiencies in the initial ex tempore reasons, and whether the appellant was denied procedural fairness by not being given the opportunity to cross-examine the respondent or make final submissions. The court needed to determine if the trial judge's actions in providing the "Addendum" reasons and not allowing the appellant to make final submissions constituted a breach of the appellant's right to procedural fairness.

In its decision, the court found that the trial judge's "Addendum" reasons did not sufficiently address the deficiencies in the initial ex tempore reasons. The court held that the trial judge's obligation to provide adequate reasons is not discharged by purporting to deliver such reasons upon request from either party. Furthermore, the court emphasised that only the parties can relieve a judicial officer from the obligation to provide adequate reasons. The court also found that the trial judge's failure to allow the appellant to cross-examine the respondent or make final submissions before dismissing the application with indemnity costs amounted to a fundamental failure to provide procedural fairness. The respondent acknowledged the errors of law made by the trial judge and withdrew her opposition to the appeal.

Consequently, the appeal was allowed. The court determined that the trial judge's actions in providing the "Addendum" reasons and not allowing the appellant to make final submissions constituted a breach of the appellant's right to procedural fairness. The respondent's concession of the errors of law and withdrawal of opposition to the appeal further supported the allowance of the appeal. The court's decision highlights the importance of providing adequate reasons for judicial decisions and ensuring procedural fairness in family law proceedings.

Orders