Sargent & Selwyn

Case [2017] FamCAFC 228


FAMILY COURT OF AUSTRALIA

SARGENT & SELWYN [2017] FamCAFC 228

FAMILY LAW – APPEAL – REASONS FOR JUDGMENT – Validity of reasons for judgment – Where the only inference that can be drawn is that the reasons for judgment were delivered after the expiration of the primary judge’s commission – Whether reasons for judgment delivered after the expiry of a judicial commission are valid – Where the reasons were provided by a person who was no longer a judge and are invalid – Where no reasons were therefore provided for the making of the orders – Error of law established.

FAMILY LAW – APPEAL – ADEQUACY OF REASONS – Parenting – Where the reasons do not explain why the mother’s proposed orders were found to be in the best interests of the child as opposed to the father’s proposed orders – Where the reasons do not discuss matters relevant to issues arising under ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth) – Where the reasons are inadequate – Appealable error established.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Whether a delay of 13 months between the making of orders and the provision of reasons constitutes an error of law – Where the orders concerned a child aged three and a half years at the time of the hearing – Where the parties were long denied an explanation for why certain parenting orders were made – Where the interests of justice did not require the orders to be made and the reasons to be delivered at a later time – Where the delay caused a miscarriage of justice and thus an error of law.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the proposed evidence is adduced to establish that the orders under appeal are erroneous – Where the evidence is not contentious – Application allowed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA, 93A(2), 94, 94AAA
Federal Circuit Court of Australia Act 1999 (Cth) ss 5, 11(1), 75(2)

Family Law Rules 2004 (Cth) r 11.16(3)
Federal Circuit Court Rules 2001 (Cth) r 1.05

Au Pui-Kuen v Attorney-General of Hong Kong [1980] AC 351
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119
Driclad Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1968) 121 CLR 45
Esso Australia Pty Ltd v Robertson [2005] VSCA 138
Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (2001) 4 VR 28
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Macris & Galanis (2015) FLC 93-681
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Moller v Roy (1975) 132 CLR 622
Nominal Defendant v Kostic [2007] NSWCA 14
Pettitt v Dunkley [1971] 1 NSWLR 376
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

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Details
AGLC
Sargent & Selwyn [2017] FamCAFC 228
Case
[2017] FamCAFC 228
Decision Date

CaseChat Overview and Summary

The appeal in the matter of Sargent & Selwyn concerned a dispute over parenting orders made by the Federal Circuit Court of Australia. The father, the appellant, challenged the validity of the reasons for judgment provided for the orders, their adequacy, and the delay in providing those reasons. The court was required to determine whether the reasons for judgment were validly delivered, adequately explained the court's decision, and whether the delay in providing them constituted an error of law.

The court found that the reasons for judgment were invalid as they were delivered after the primary judge's commission had expired. The court held that the reasons were provided by someone who was no longer a judge, making them invalid. Furthermore, the reasons did not adequately explain why the mother's proposed orders were found to be in the best interests of the child as opposed to the father's proposed orders. The court held that the reasons were inadequate and did not discuss matters relevant to the issues arising under sections 60CC, 61DA, and 65DAA of the Family Law Act 1975 (Cth). The court also found that the delay of 13 months between the making of orders and the provision of reasons constituted an error of law, as the interests of justice did not require the orders to be made and the reasons to be delivered at a later time.

The court allowed the appeal and set aside the orders made on 29 June 2015 as amended on 22 July 2016. The proceedings were remitted to the Federal Circuit Court of Australia for re-hearing. The court granted the appellant a costs certificate and the respondent a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). The court also granted each party a costs certificate for the new trial ordered. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The Application in an Appeal filed 14 August 2017 be allowed.

2.

The appeal be allowed and the orders made on 29 June 2015 as amended on 22 July 2016 be set aside.

3.

The proceedings be remitted to the Federal Circuit Court of Australia for re-hearing.

4.

There be no order as to costs.

5.

The Court grants to the appellant father a costs certificate pursuant to 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 father in respect of the costs incurred by him in relation to the appeal.

6.

The Court grants to the respondent mother 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 mother in respect of the costs incurred by her in relation to the appeal.

7.

The Court grants to each of the parties 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

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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