Reid & Lynch

Case [2010] FamCAFC 184

Family Court Of Australia

REID & LYNCH [2010] FamCAFC 184

FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate properly considered the principles in Rice and Asplund (1979) FLC 90-725 – Where the orders sought to be set aside were made by consent – Whether it is relevant to consider the subjective intention of a party to consent orders – Detailed consideration of the relevant provisions for consent orders in the Family Law Rules 2004 (Cth) and the Federal Magistrate’s Court Rules 2001 (Cth) – Considerations of the various forms of estoppel including res judicata, issue estoppel and Anshun estoppel – Where the Federal Magistrate failed to consider what was said in Rice and Asplund – Where the Father was not aware of the family report – Where the family report was not a material undisclosed factor that would justify a hearing of all of the issues that were disposed of – Where the Federal Magistrate should not have relied upon the material that was not in evidence which included the family report – Appeal allowed

FAMILY LAW - REDETERMINATION – Where all the evidence which the Father relies upon is before the Full Court – Where the Father has not established that there was a significant change in circumstances or that there was a material factor that was not then disclosed – Application dismissed

FAMILY LAW - APPEAL – PARENTING – Appeal against the refusal to stay the orders subject of the first appeal – Where the parties had not filed the requisite material in order to proceed to final hearing – Where the final hearing could not commence before the pronouncement of judgment in relation to the appeals since the two appeals would then be rendered nugatory – Where the final hearing was vacated – Appeal allowed

FAMILY LAW - COSTS – Reserved
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Freeman and Freeman (1987) FLC 91-857
Inwood & Barnett [2008] FMCAfam 1446
Jackson v Goldsmith (1950) 81 CLR 446
King and Finneran (formerly King) (2001) FLC 93-079
Langford and Coleman (1993) FLC 92-346
Langham and Langham (1981) FLC 91-014
Marsden v Winch (2010) 42 Fam LR 1
Mazorski v Albright (2008) 37 Fam LR 518
McEnearney and McEnearney (1980) FLC 90-866
McManus v McManus [1969] 13 FLR 449
Miller & Harrington (2008) FLC 93-383
Newling and Newling; Mole (Applicant) (1987) FLC 91-856
Port of Melbourne Authority v AnshunPty Ltd (1981) 147 CLR 589
Rice and Asplund (1979) FLC 90-725
SPS and PLS (2008) FLC 93-363
Zabaneh and Zabaneh (1986) FLC 91-766
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Reform Act 1995 (Cth)
Matrimonial Causes Act 1959 (Cth)
Family Law Rules 2004 (Cth)
Federal Magistrates Court Rules 2001 (Cth) - r 23.01A(5)(a)
Anthony Dickey, Family Law (Thomson Law, 5th ed, 2007)
LexisNexis Butterworths, Australian Family Law, vol 1 (at Service 215) [s60CC.210]
LexisNexis Butterworths, Halsbury’s Laws of Australia, vol…

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Details
AGLC
Reid & Lynch [2010] FamCAFC 184
Case
[2010] FamCAFC 184
Decision Date

CaseChat Overview and Summary

The appeal before the court involved a dispute between the parties regarding parenting arrangements. The primary concern was whether the Federal Magistrate had correctly applied the principles outlined in Rice and Asplund (1979) FLC 90-725 when setting aside parenting orders made by consent. The appeal also addressed whether the subjective intentions of the parties to enter into consent orders were relevant and whether the Federal Magistrate had erred in considering a family report that was not before the court at the time of the consent orders. Additionally, the appeal considered whether the family report constituted a material undisclosed factor that would necessitate a hearing on all issues previously disposed of, and whether the Federal Magistrate should have relied on material that was not in evidence.

The court examined the legal framework governing consent orders in the Family Law Rules 2004 (Cth) and the Federal Magistrate’s Court Rules 2001 (Cth). It also delved into the various forms of estoppel, including res judicata, issue estoppel, and Anshun estoppel, to determine their applicability. The court found that the Federal Magistrate failed to properly consider the principles articulated in Rice and Asplund. Furthermore, the court determined that the father was not aware of the family report and that the report was not a material undisclosed factor that would justify a rehearing of all issues. Consequently, the court ruled that the Federal Magistrate should not have relied on the family report, which was not in evidence.

The appeal against the Federal Magistrate's refusal to dismiss the application was allowed, and the orders made on 20 April 2010 were set aside. The application filed on behalf of the respondent on 10 February 2010 was dismissed. The court also vacated the final hearing as the requisite material had not been filed, and the appeals would otherwise be rendered nugatory. The court further addressed the issue of costs, reserving the matter for later determination.

The orders made by the court included allowing the appeal against the Federal Magistrate's decision, setting aside the orders made on 20 April 2010, dismissing the application filed on 10 February 2010, and directing the parties to submit written submissions regarding costs within specified timeframes. The parties were also given liberty to reply to the submissions of the other party.

Orders

Orders of the court

1.

The appeal against the refusal of Federal Magistrate Neville on 20 April 2010 to dismiss the application filed by the Respondent on 10 February 2010 be allowed.

2.

The order and notation made on 20 April 2010 be set aside.

3.

The application filed on behalf of the Respondent on 10 February 2010 be dismissed.

4.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeals by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties within 28 days of the date hereof.

5.

Each party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other parties.

6.

Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other parties within a further 7 days.

7.

Each party endorse on the cover sheet of any submissions filed pursuant to orders 4, 5 and 6, the date upon which a copy of that submission was served on the other parties.

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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