SIELAFF & STAATZ - [2018] FamCAFC 213

FAMILY COURT OF AUSTRALIA

SIELAFF & STAATZ

[2018] FamCAFC 213

FAMILY LAW – APPEAL – CONSENT – Where the parties agree that the appeal be allowed, that the orders appealed be set aside, that the matter be remitted for rehearing and costs certificates issue pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where appealable errors are amply demonstrated and the appeal should succeed – Where there are a lack of adequate reasons provided by the trial judge – Where the appeal is properly characterised as a Federal appeal, it will succeed on a question of law and it has been listed in a public and formal way – Where the parties have been put to unnecessary expense in pursuing the appeal and the matter must be re-litigated – Appeal allowed – Orders set aside – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge – Each party bear their own costs – Costs certificates issued as sought by the parties.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9

Bhatnagar & Riju [2018] FamCAFC 144

Cramer v Davies (1997) 72 ALJR 146

APPELLANT:

Mr Sielaff

RESPONDENT:

Ms Staatz

FILE NUMBER:

SYC

3390

2015

APPEAL NUMBER:

EAA

2018

DATE DELIVERED:

2 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Watts & McClelland JJ

HEARING DATE:

2 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 February 2018

LOWER COURT MNC:

[2018] FCCA 298

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Flintoff

SOLICITOR FOR THE APPELLANT:

Lindeman Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Dribbus Kovacevic Lawyers

Orders

The appeal against the orders made by Judge Boyle on 9 February 2018 be allowed.
The said orders be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Boyle.
Each party bear their own costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 in respect of the costs incurred by him in relation to this appeal.
The Court grants to the respondent a cost 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 in respect of the cost incurred by her in relation to this appeal.
The Court grants to each party a cost certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that…

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: SIELAFF & STAATZ [2018] FamCAFC 213
Case: [2018] FamCAFC 213
Decision Date: 2 November 2018

CaseChat Overview and Summary

The case, Sielaff & Staats, involved an appeal by the plaintiff, Mr Sielaff, against the orders made by Judge Boyle on 9 February 2018, in the Federal Circuit Court of Australia. The plaintiff sought to set aside those orders, arguing they were made in error and should be reheard by a different judge. The dispute centred on the validity of certain legal decisions made during the initial proceedings, which the plaintiff contended were flawed.

The legal issues the court had to decide included whether Judge Boyle had erred in his interpretation of the law or in his application of it, leading to the orders that were subsequently appealed. The court also had to consider whether the initial proceedings were conducted in such a way that a fair hearing was not possible, necessitating a rehearing before a different judge.

In allowing the appeal, the court found that Judge Boyle had indeed made errors in his legal reasoning and application of the law, resulting in the orders being set aside. The court emphasised that the errors were significant enough to potentially affect the outcome of the case. Consequently, the court ordered the proceedings to be remitted to the Federal Circuit Court of Australia for rehearing by a different judge. Additionally, the court made various orders regarding costs, including granting cost certificates to both parties, enabling them to seek reimbursement from the Attorney-General for costs incurred during the appeal and any subsequent rehearing.

Orders

Orders of the court

The appeal against the orders made by Judge Boyle on 9 February 2018 be allowed.

The said orders be set aside.

The proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Boyle.

Each party bear their own costs.

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

The Court grants to the respondent a cost 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 in respect of the cost incurred by her in relation to this appeal.

The Court grants to each party a cost 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of these proceedings.

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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