SAVILLE & MEYER - [2012] FamCAFC 180

FAMILY COURT OF AUSTRALIA

SAVILLE & MEYER

[2012] FamCAFC 180

FAMILY LAW ─ APPEAL ─ Challenge to the adequacy of the Federal Magistrate’s reasons for judgment ─ Where the issue which required determination fell within a very small compass ─ Where it is difficult to suggest what more the Federal Magistrate could have said, by way of revelation of his reasoning process, or have said in reliance upon the evidence which was before him ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ Asserted denial of natural justice ─ Where, although the father did materially alter his position late in the proceedings, there was ample opportunity thereafter for Counsel for the mother to make submissions in relation to that issue ─ Where there was no testing of the evidence of either party or the Family Consultant at trial ─ Where nothing to which the Court was referred, or otherwise discovered from the transcript of the proceedings established that the mother was denied natural justice or procedural fairness ─ Where it is not only difficult to suggest how natural justice or procedural fairness was denied, but difficult to suggest how, if it was, anything would have been different if it had not been ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Best interests of child - Whether the Federal Magistrate’s decision was unsupported by the evidence before him ─ Where the Federal Magistrate was placed in the invidious position of having no expert opinion or other evidence upon which he could safely rely in determining the very narrow issue of best interests ─ Where no irrelevant or extraneous fact or circumstances was shown to have influenced the Federal Magistrate’s exercise of discretion ─ Not demonstrated that the Federal Magistrate failed to have regard to any relevant fact or circumstance ─ Appeal dismissed.

FAMILY LAW ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the father did not seek an order for costs ─ Where the process which led to the determination of the proceedings carried with it the great risk that one party would feel aggrieved by the outcome ─ No order for costs made.

Family Law Act 1975 (Cth) Part VII, s 60CC

Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) 23 ALR 211
Gronow v Gronow (1979) 144 CLR 513
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Norbis v Norbis (1986) 161 CLR 513
Pettitt v Dunkley (1971) 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Ms Saville

RESPONDENT:

Mr Meyer

INDEPENDENT CHILDREN’S LAWYER

Legal Aid NSW Newcastle Family Law

FILE NUMBER:

NCC

323

2008

APPEAL NUMBER:

2012

DATE DELIVERED:

12 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

31 October…

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

AGLC: SAVILLE & MEYER [2012] FamCAFC 180
Case: [2012] FamCAFC 180
Decision Date: 12 November 2012

CaseChat Overview and Summary

The appeal before the court was brought by the father, challenging the adequacy of the Federal Magistrate's reasons for judgment in a family law matter. The primary issues addressed by the court included whether the Federal Magistrate's reasons for judgment were sufficient, whether there was a denial of natural justice, and whether the decision regarding the children's best interests was unsupported by the evidence. The father also contested the procedural fairness of the proceedings.

The court examined whether the Federal Magistrate's reasons for judgment were adequate and found that, given the narrow scope of the issue, it was difficult to suggest what more could have been included. The court also considered the father's late alteration of his position and found that there was ample opportunity for the mother's counsel to make submissions. Regarding the alleged denial of natural justice, the court found no evidence to support the claim that the mother was denied procedural fairness. Finally, the court assessed the Federal Magistrate's decision on the children's best interests and determined that it was not unsupported by the evidence, especially given the lack of expert opinion or other evidence to rely upon.

The court concluded that the appeal was unsuccessful in all respects. The reasoning of the Federal Magistrate was deemed adequate, no denial of natural justice was found, and the decision on the children's best interests was supported by the evidence. Consequently, the appeal was dismissed, and no orders as to costs were made due to the wholly unsuccessful nature of the appeal.

That the appeal be dismissed. That there be no orders as to costs.

Orders

Orders of the court

That the appeal be dismissed.

That there be no orders as to costs.

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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