Reynolds & Sherman

[2015] FamCAFC 128

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

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) 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.

6. The Court grants to the respondent father a costs certificate pursuant…