ROE & CRESWICK - [2013] FamCAFC 149

FAMILY COURT OF AUSTRALIA

ROE & CRESWICK

[2013] FamCAFC 149

FAMILY LAW – APPEAL – CHILDREN – appeal against Federal Magistrate’s decision to dismiss the father’s interim and final applications to re-agitate parenting proceedings – where the mother had not sought an order for summary dismissal of the father’s application – where the father asserts that the Rice & Asplund application came as a consequence of a suggestion by Federal Magistrate – consideration of the so-called “rule” in Rice & Asplund - where the father was seeking an updated family report – appeal allowed – orders set aside – order made for family report - matter remitted for re-hearing.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act1981 (Cth)

Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
Gaston & Sankot-Gaston [2009] FMCAfam 478
Gronow & Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
Marsden & Winch (2010) 42 Fam LR 1
Rice & Asplund (1979) FLC 90-725
Scranton & Scranton [2012] FamCAFC 54
SPS & PLS (2008) FLC 93-363

APPELLANT:

Mr Roe

RESPONDENT:

Ms Creswick

FILE NUMBER:

ROC

607

2012

APPEAL NUMBER:

2013

DATE DELIVERED::

27 September 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

16 July 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 March 2013

LOWER COURT MNC:

[2013] FMCAfam 337

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R Galloway

SOLICITOR FOR THE APPELLANT:

Madden Solicitors

COUNSEL FOR THE RESPONDENT:

Mr K Wilson QC

SOLICITOR FOR THE RESPONDENT:

Harrington Lawyers

Orders

The appeal be allowed.
In relation to the father’s interim application filed 30 October 2012 it is ordered that a family report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth) by such person as the parties may agree and failing agreement as appointed by the Court.
The father’s application filed 30 October 2012 seeking interim and final orders be remitted to the Federal Circuit Court of Australia to be heard by a judge other than Judge Cassidy. Any further directions in relation to the family report or other matters be heard by that Judge.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal against the parenting orders.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred…

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.

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Details

Case: [2013] FamCAFC 149
Decision Date: 27 September 2013

CaseChat Overview and Summary

The Federal Circuit Court of Australia presided over an appeal by the father in the matter of Roe & Creswick, concerning ongoing parenting disputes. The father sought to re-agitate the parenting proceedings, which were dismissed by the Federal Magistrate. Notably, the mother did not request a summary dismissal of the father’s application. The father argued that his application to re-open the proceedings was made in response to a suggestion by the Federal Magistrate, and it was influenced by the "rule" established in Rice & Asplund. The father's primary requests included an updated family report and a re-hearing of the matter.

The legal issues before the court involved the interpretation and application of the so-called “rule” from Rice & Asplund and the procedural fairness in the dismissal of the father’s application. The court had to determine whether the Federal Magistrate's decision to dismiss the father’s application was justified and whether the father’s application to re-open the proceedings should be allowed. Additionally, the court needed to consider whether the dismissal of the father’s application was influenced by the Federal Magistrate's suggestion, and if so, whether this warranted a re-hearing.

The court found that the Federal Magistrate's suggestion did influence the father’s decision to re-agitate the proceedings. The court held that the father's application should not have been dismissed without proper consideration of the circumstances, especially since the mother had not sought a summary dismissal. The appeal was allowed, and the orders made by the Federal Magistrate were set aside. The court ordered a family report to be prepared and remitted the father’s application to the Federal Circuit Court of Australia for a re-hearing by a different judge. The court also made orders regarding costs, granting both parties a certificate for potential payment under the Federal Proceedings (Costs) Act 1981.

The final orders of the court were that the appeal was allowed, a family report was to be prepared, the father’s application was remitted for re-hearing by a different judge, and no order was made as to costs. Both parties were granted a costs certificate, allowing potential reimbursement for costs incurred during the appeal.

Orders

Orders of the court

The appeal be allowed.

In relation to the father’s interim application filed 30 October 2012 it is ordered that a family report be prepared pursuant to s 62G of the Family Law Act 1975 (Cth) by such person as the parties may agree and failing agreement as appointed by the Court.

The father’s application filed 30 October 2012 seeking interim and final orders be remitted to the Federal Circuit Court of Australia to be heard by a judge other than Judge Cassidy. Any further directions in relation to the family report or other matters be heard by that Judge.

There be no order as to costs.

The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the appellant father in relation to the appeal against the parenting orders.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 mother in respect of the costs incurred by the respondent mother in relation to the appeal against the parenting orders.

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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