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 Family Law Rules 2004 (Cth) r 11.16(3) |
| 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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- AGLC
- Sargent & Selwyn [2017] FamCAFC 228
- Case
- [2017] FamCAFC 228
- Decision Date
CaseChat Overview and Summary
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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