ROWELL & KEOGH

Case [2011] FamCAFC 74

FAMILY COURT OF AUSTRALIA

ROWELL & KEOGH [2011] FamCAFC 74

FAMILY LAW - APPEAL – ADJOURNMENT – Where the father claims that he was denied procedural fairness by the Federal Magistrate’s refusal to grant an adjournment on the first day of the hearing – Where the father was seeking to review the decision of Legal Aid NSW refusing him aid – Where the Federal Magistrate regarded herself as bound by s 57 of the Legal Aid Commission Act 1979 (NSW) and where she also considered whether otherwise an adjournment should be granted – Where the Federal Magistrate was concerned that should the matter be adjourned the position may be no different on the next occasion - Where the father submitted that an adjournment should have been granted, as there were no special circumstances that prevented the Federal Magistrate from not granting an adjournment – Where it was argued there was nothing in the Family Law Act 1975 (Cth) that otherwise provided, as required by s 79 of the Judiciary Act 1903 (Cth) – Where the principles in s 69ZN of the Family Law Act 1975 (Cth) do not by themselves create or confer separate rights or entitlements –Where it was submitted that the Federal Magistrate failed to consider the impact on the relationship between the child and the father – Where in most cases where one party has appealed from a Legal Aid decision in relation to obtaining aid for legal representation, an adjournment should be given – Where in this case it was known that legal aid was refused on a merits basis and where this was a proper fact for the Federal Magistrate to take into account – Where the Federal Magistrate was correct in not granting an adjournment – Where a new trial would inevitably result in the same orders being made and given the significant implications on the child and the mother of a re-hearing, the process would be detrimental and futile.

FAMILY LAW - APPEAL – CHILDREN – Whether orders should be made providing for the child to have time with the father – Where the trial judge ordered the mother have sole parental responsibility for child and that there be no contact between the father and the child – Where the decision was consistent with the recommendations of the expert report.

FAMILY LAW - APPEAL – CHILDREN – Where the other grounds of appeal concern a challenge to the Federal Magistrate’s discretion – Where there is no substance in those grounds – No error of law or fact demonstrated and where errors of weight to be given to the evidence were asserted – Where the evidence supported the orders made by the Federal Magistrate as being in the child’s best interests – Appeal dismissed.

FAMILY LAW - COSTS – Orders made providing for written submissions.
Family Law Act 1975 (Cth) s 69ZN
Judiciary Act 1903 (Cth) s 79
Legal Aid Commission Act 1979 (NSW) s 57
A v J (1995) FLC 92-619
Bourke and…

Continue reading ROWELL & KEOGH

Sign in free to access the full text

Details
AGLC
ROWELL & KEOGH [2011] FamCAFC 74
Case
[2011] FamCAFC 74
Decision Date

CaseChat Overview and Summary

The case involves an appeal by the father against the orders of the Federal Circuit Court, which dealt with the father's application for legal aid and the determination of contact between him and his child. The father argued that he was denied procedural fairness by the refusal of the Federal Magistrate to grant an adjournment on the first day of the hearing. The father also challenged the orders regarding the child's contact with him and the trial judge's discretion in making these orders.

The court was required to decide whether the Federal Magistrate's refusal to grant an adjournment constituted a denial of procedural fairness. The court also had to consider whether the orders regarding the child's contact with the father were in the child's best interests, and whether there were any errors in the trial judge's discretion. The court examined whether the principles in the Family Law Act 1975 (Cth) provided for separate rights or entitlements that the Federal Magistrate failed to consider.

The court found that the Federal Magistrate was correct in not granting an adjournment, as the father had not demonstrated special circumstances that prevented the adjournment from being granted. The court also found that the orders made by the trial judge were in the child's best interests and were supported by the evidence. The court dismissed the father's appeal and ordered that the respondent mother and the Independent Children’s Lawyer are at liberty to file written submissions with regard to the costs of the appeal.

The appeal was dismissed, and the respondent mother and the Independent Children’s Lawyer were given the opportunity to file written submissions with regard to the costs of the appeal.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The respondent mother and the Independent Children’s Lawyer are at liberty to file written submissions with regard to the costs of the appeal, in accordance with the following timetable:

(a) On behalf of the respondent mother within 21 days of the date of this order;

(b) On behalf of the Independent Children’s Lawyer 14 days after receipt of the respondent mother’s submissions;

(c) On behalf of the appellant father in reply thereto within 21 days after receipt of the Independent Children’s Lawyers submissions, and;

(d) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.