FAMILY COURT OF AUSTRALIA
| REYNOLDS & SHERMAN | [2015] FamCAFC 128 |
| FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Where the mother and father never cohabited and their relationship ended shortly after the mother became pregnant with the child – Where the mother appealed against an order for the child’s surname to be hyphenated – Where the mother was self-represented at trial – The trial judge made statements during the hearing that suggested she had prejudged the matter – The mother was denied procedural fairness because the trial judge did not explain what cross-examination was, or advise of the consequences of not cross-examining – Appeal allowed – Costs certificates granted. FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Matters to be considered – The trial judge did not consider whether the orders sought were parenting orders – If the orders were injunctions rather than parenting orders, the trial judge was not obliged to consider the s 60CC factors – If the orders fell within the scope of s 64B(2)(i) they would constitute “parenting orders” and the relevant s 60CC matters would have to be considered – In the absence of full argument it would not be proper to express a concluded view on the issue, but consideration of the relevant s 60CC factors may have assisted the trial judge in determining what orders would be appropriate. |
| Family Law Act 1975 (Cth) – s 4(1), s 60CA, s 60CC, s 64B, s 68B Federal Proceedings Costs Act 1981 (Cth) |
| Beach and Stemmler (1979) FLC 90-692 Chapman and Palmer (1978) FLC 90-510 Flanagan and Handcock (2001) FLC 93-074 Jurchenko & Foster (2014) FLC 93-598 Re F: Litigants in Person Guidelines (2001) FLC 93-072 Ryan & Burnett [2008] FamCAFC 72 |
| APPELLANT: | Ms Reynolds |
| RESPONDENT: | Mr Sherman |
| FILE NUMBER: | BRC | 8456 | of | 2013 |
| APPEAL NUMBER: | NA | 64 | of | 2014 |
| DATE DELIVERED: | 30 June 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray & Aldridge JJ |
| HEARING DATE: | 29 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 October 2014 |
| LOWER COURT MNC: | [2014] FCCA 2275 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Whieldon |
| SOLICITOR FOR THE RESPONDENT: | Springwood Lawyers |
Orders
The appeal be allowed.
Paragraphs 2 and 3 of the orders made in the Federal Circuit Court of Australia on 23 October 2014 be discharged.
The proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant…
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CaseChat Overview and Summary
The primary legal issue was whether the orders made by the trial judge were parenting orders, as defined in the Family Law Act. If the orders were considered parenting orders, the trial judge would have been required to consider the matters outlined in section 60CC of the Act. However, if the orders were considered injunctions, the trial judge was not required to consider the s 60CC factors. The Court observed that if the orders fell within the scope of s 64B(2)(i), they would constitute "parenting orders" and the relevant s 60CC matters would have to be considered. The Court could not express a concluded view on the issue due to the lack of full argument, but consideration of the relevant s 60CC factors may have assisted the trial judge in determining what orders would be appropriate.
The Court found that the trial judge's conduct during the hearing suggested prejudgment and a denial of procedural fairness. The mother was not adequately informed about the implications of not cross-examining the father, and the trial judge's comments during the hearing indicated a prejudgment of the matter. As a result, the appeal was allowed, and the orders made by the trial judge were discharged. The Court remitted the proceedings for rehearing in the Federal Circuit Court by a different judge. Additionally, the Court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing for potential reimbursement of costs incurred in relation to the appeal and the rehearing of the applications.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Paragraphs 2 and 3 of the orders made in the Federal Circuit Court of Australia on 23 October 2014 be discharged.
3.
The proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the primary judge.
4.
There be no order as to costs.
5.
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 in respect of the costs incurred by her in relation to the appeal.
6.
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 in respect of the costs incurred by him in relation to the appeal.
7.
The Court grants to the respondent father a costs certificate pursuant to the provisions of 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 the respondent in respect of the costs incurred by him in relation to the rehearing of the applications.
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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