Ritter & Ritter

Case [2020] FamCAFC 86


FAMILY COURT OF AUSTRALIA

RITTER & RITTER AND ANOR [2020] FamCAFC 86

FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the primary judge summarily dismissed the husband’s application pursuant to s 79A of the Family Law Act 1975 (Cth) – Leave to appeal granted – Denial of procedural fairness – Where the primary judge decided the matter on issues not raised in the hearing and of which the parties had no notice – Where the husband was not provided the opportunity to be heard on issues relevant to the primary judge’s conclusion – Where the husband’s evidence taken at its highest was not incredible or unreliable – Appeal allowed – Discretion re‑exercised – Application for summary dismissal refused.

FAMILY LAW – APPEAL – COSTS – Respondents ordered to equally pay the husband’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth) ss 45A, 79A, 94AA, 117(2A)
Federal Circuit Court of Australia Act 1999 (Cth) s 17A
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Andrews & Andrews [2007] FamCA 562
Bigg v Suzi (1998) FLC 92-799; [1998] FamCA 14
Coe v The Commonwealth (1979) 24 ALR 118; [1979] HCA 68
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dewhirst v Edwards [1983] 1 NSWLR 34
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; [2013] VSCA 158
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Meyers v Casey (1913) 17 CLR 90; [1913] HCA 50
Munnings v Australian Government Solicitor (1994) 68 ALJR 169; [1994] HCA 65
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Webster v Lampard (1993) 177 CLR 598; [1993] HCA 57
Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272
APPELLANT: Mr Ritter
FIRST RESPONDENT: Ms Ritter
SECOND RESPONDENT: Ms X Ritter
FILE NUMBER: PAC 3900 of 2018
APPEAL NUMBER: EAA 51 of 2019
DATE DELIVERED: 20 April 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney (via videolink)
JUDGMENT OF: Ainslie-Wallace, Aldridge & Rees JJ
HEARING DATE: 30 March 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 30 April 2019
LOWER COURT MNC: [2019] FCCA 782

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Othen
SOLICITOR FOR THE APPELLANT: Beswick Lynch Lawyers
COUNSEL FOR THE FIRST RESPONDENT: Mr Todd
SOLICITOR FOR THE FIRST RESPONDENT: Everett Evans Solicitors
COUNSEL FOR THE SECOND RESPONDENT: Mr Wong
SOLICITOR FOR THE SECOND RESPONDENT: McAuley Hawach Lawyers

Orders

  1. The appellant husband is granted leave to appeal.

  2. The Application in an Appeal filed by the appellant husband…

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Details
AGLC
Ritter & Ritter [2020] FamCAFC 86
Case
[2020] FamCAFC 86
Decision Date

CaseChat Overview and Summary

The appeal in Ritter & Ritter involved the husband challenging the summary dismissal of his application under section 79A of the Family Law Act 1975 (Cth). The Federal Circuit Court had dismissed the husband's application, leading to the appeal being lodged in the Family Court of Australia. The husband argued that the primary judge had not afforded him procedural fairness, as the decision was made on issues not previously raised and without providing him an opportunity to be heard on those matters. Additionally, the husband contended that his evidence was not unreliable or incredible.

The court was required to determine whether the primary judge had exercised his discretion correctly in summarily dismissing the husband's application and whether there had been a denial of procedural fairness. The key legal issue was whether the husband had been given a fair opportunity to present his case on the issues that ultimately influenced the primary judge's decision. The court also considered the reliability and credibility of the husband's evidence.

The court found that the primary judge had erred by deciding the case on issues not raised at the hearing and without providing the husband an opportunity to address those issues. The husband's evidence was deemed not to be incredible or unreliable when taken at its highest. Consequently, the court allowed the appeal, set aside the primary judge's orders, and re-exercised the discretion in favour of the husband. The court also dismissed the wife and daughter's application for summary dismissal of the husband's initiating application. The wife and daughter were ordered to equally pay the husband's costs of and incidental to the appeal.

Orders

Orders of the court

1.

The appellant husband is granted leave to appeal.

2.

The Application in an Appeal filed by the appellant husband on 9 March 2020 to adduce further evidence is dismissed.

3.

The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 30 April 2019 is allowed and those orders are set aside.

4.

The oral application of the respondent wife and respondent daughter seeking summary dismissal of the Initiating Application for orders pursuant to s 79A of the Family Law Act 1975 (Cth) filed by the appellant husband on 20 August 2018 is dismissed.

5.

The respondent wife and respondent daughter equally pay the appellant husband’s costs of and incidental to the appeal fixed in the sum of $19,030.67.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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