FAMILY COURT OF AUSTRALIA
| SIMPSON & BROCKMANN | [2010] FamCAFC 37 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Consideration of the applicable law when determining the correctness of the decision below as opposed to on a re-exercise – Consideration of meaning of “by way of rehearing” – In determining if error exists in the orders appealed the law to be applied is as it stood at the time the orders were made FAMILY LAW - SAME SEX RELATIONSHIP – CHILDREN AND PARENTING – Consideration of ‘parent’ within Part VII – Rejection of the submission that at the time the orders were made each woman was the ‘parent’ of the other’s child – Consideration of submissions as to failure to follow the legislative pathway, failure to provide adequate reasons and denial of procedural fairness – No merit in the grounds of appeal FAMILY LAW - APPEAL DISMISSED – Appellant to pay the respondent’s costs |
| Family Law Act 1975 (Cth) s 60B; s 60CC; s 60H; s 61C; s 65DA; s 65K Family Law Amendment (Defacto Financial Matters and Other Measures) Act 2008 Family Law Amendment (Shared Parental Responsibility) Act 2006 Status of Children Act 1996 (NSW) s 14(1A) |
| Aldridge & Keaton [2009] FamCAFC 229 Allesch v Maunz (2000) 203 CLR 172 Boral Windows and Ors v Industry Research & Development Board and Ors (1998) 83 FCR 215 CDJ v VAJ (1998) 197 CLR 172 Donnell & Dovey [2010] FamCAFC 15 Guinness & Guinness (2008) FLC 93-358 H & J (2006) FMCAfam 514 Harris v Caladine (1991) FLC 92-217 Mulvany & Lane (2009) FLC 93-404 Re: Mark An Application Relating to Parental Responsibilities (2003) FLC 93-173 State of Western Australia v Ward (2000) 99 FCR 316 SCVG & KLD [2007] HCATrans 799 Vanderhum and Doriemus (2007) FLC 93-324 Western Australia v Ward (2002) 213 CLR 1 |
| APPELLANT: | Ms SIMPSON |
| RESPONDENT: | Ms BROCKMANN |
| APPEAL NUMBER: | NA | 81L | of | 2008 |
| FILE NUMBER: | LEC | 311 | of | 2007 |
| DATE DELIVERED: | 11 March 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Warnick, May JJ |
| HEARING DATE: | 7 December 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 July 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 763 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cotter-Moroz |
| SOLICITOR FOR THE APPELLANT: | Trenches McKenzie Cox |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney |
| SOLICITOR FOR THE RESPONDENT: | Newman Solicitors |
Orders
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal, as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Simpson and Brockmann is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: LEC 311 of 2007
File Number: NA 81L of 2008
| Ms SIMPSON |
Appellant
And
| Ms BROCKMANN |
Respondent
REASONS FOR JUDGMENT
This appeal raises again for consideration, the meaning of the term “by way of rehearing”, as descriptive of…
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- Simpson & Brockmann [2010] FamCAFC 37
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- [2010] FamCAFC 37
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CaseChat Overview and Summary
The case of Simpson & Brockmann was brought before the Full Court of the Federal Court of Australia. The matter involves an appeal against the decision made by the Family Court concerning parenting orders. The central issue in the appeal was whether the amendments to the Family Law Amendment (Shared Parental Responsibility) Act 2006, which took effect on 1 July 2006, could be applied retrospectively in the context of the appeal. The appellant argued that the amendments should have been considered by the trial judge, and thus, the decision should be reconsidered in light of the new legislation.
The court was required to determine the scope of its jurisdiction in appeals from the Family Court and whether the amendments to the Family Law Act 1975 could be applied retrospectively. This involved interpreting the relevant sections of the Family Law Act, particularly sections 93A(2) and 94, which govern the powers and procedures of the Full Court in appeals from the Family Court. The court also had to examine whether the amendments to the Family Law Act were intended to have retrospective effect, and if so, how this would impact the appeal process.
The Full Court found that an appeal under section 94(1) of the Family Law Act is an appeal by way of rehearing, which allows the Full Court to substitute its own decision based on the facts and law as they then stand. However, the court emphasised that this power can only be exercised if the appellant demonstrates that the order being appealed was the result of some legal, factual, or discretionary error. The court further held that the amendments to the Family Law Act were not intended to have retrospective effect, and therefore, the Full Court could not apply the amended provisions to the appeal. The court dismissed the appeal and ordered the appellant to pay the respondent's costs.
The court was required to determine the scope of its jurisdiction in appeals from the Family Court and whether the amendments to the Family Law Act 1975 could be applied retrospectively. This involved interpreting the relevant sections of the Family Law Act, particularly sections 93A(2) and 94, which govern the powers and procedures of the Full Court in appeals from the Family Court. The court also had to examine whether the amendments to the Family Law Act were intended to have retrospective effect, and if so, how this would impact the appeal process.
The Full Court found that an appeal under section 94(1) of the Family Law Act is an appeal by way of rehearing, which allows the Full Court to substitute its own decision based on the facts and law as they then stand. However, the court emphasised that this power can only be exercised if the appellant demonstrates that the order being appealed was the result of some legal, factual, or discretionary error. The court further held that the amendments to the Family Law Act were not intended to have retrospective effect, and therefore, the Full Court could not apply the amended provisions to the appeal. The court dismissed the appeal and ordered the appellant to pay the respondent's costs.
Orders
Orders of the court
1.
That the appeal be dismissed.
2.
That the appellant pay the respondent’s costs of and incidental to the appeal, as agreed and in default of agreement, as assessed.
Background
Background to the litigation
In Allesch, Gaudron, McHugh Gummow and Hayne JJ also said:23. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (footnotes omitted, emphasis added) In our opinion, Ms Cotter-Moroz’s argument here incorrectly equates the hearing on appeal in this court, with an appeal de novo. Further, while this court may receive further evidence and, in the light of that, find merit in a ground of appeal, nothing in the passages quoted from Ward, CDJ or Allesch supports the proposition that a change in the law between the orders appealed and the appeal, must produce success in the appeal. The final words in the last passage quoted from Allesch that “on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand” is directed to the powers of the appellate court, once merit has been found in a ground of appeal, to decide the application which had been determined at first instance. Ms Cotter-Moroz’s argument is the same argument as was considered by the Full Court of this Court in Vanderhum and Doriemus, and there rejected. In Vanderhum and Doriemus the trial judge had made parenting orders shortly before 1 July 2006, when the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 were to commence. The grounds of appeal, in particular ground 1, asserted that the trial judge should have taken into account the provisions of the amending legislation. At the hearing this assertion developed into an argument which the Full Court encapsulated as:86. That the decision of a trial judge may be rendered erroneous by a subsequent amendment to the Act.… As set out in the reasons of the Court, the appellant relied upon the very passages from CDJ and Allesch & Maunz set out above, as well as a passage from the judgment of Dawson J in Harris v Caladine (1991) FLC 92-217 at 78,486. In respect of those arguments, the Full Court said:92.The learned authors of Halsbury’s Laws of Australia suggest (at 385-500) that “There is a presumption that Parliament intends all statutes, except those which are declaratory, or related to matters of procedure, to operate prospectively and not retrospectively unless the language used plainly manifests in express terms or, by clear implication, a contrary intention. So unless a contrary intention is shown, a statute will not be construed as taking away or altering the incidents of accrued rights the title to which consists in facts or events which have occurred before its enactment.” (See also Acts Interpretation Act 1901 (Cth) s 5; Maxwell v Murphy (1957) 96 CLR 261 at 267; [1957] ALR 231; (1957) 31 ALJ 143 per Dixon CJ)]93.Although not so crudely expressed, in reality, if successful, the challenge embodied in this ground means that the provisions of Part VII of the Act as they commenced on 1 July 2006 have retrospective effect on appeal to this Court but only prospective effect at first instance. We have been referred to nothing in the legislation to indicate an intention that the provisions of Part VII as they now are were intended to have such retrospective effect. On the contrary, the terms of the Family Law Amendment (Shared Parental Responsibility) Act 2006 contain clear indications that the amendments were not intended to have retrospective effect.…101.The “law” applied by the Family Court is that which is embodied in the provisions of the Family Law Act 1975. The authorities, and logic, leave little room for doubt that Part VII of the Act in its current form would govern either a re-exercise of discretion by this Court or a new trial before a single Judge of the Court in the event of the appeal succeeding. We are not persuaded however that Part VII of the Act in its current form governs the appeal itself. Part VII of the Act provides a legislative basis for the exercise of original jurisdiction with respect to the matters therein referred to. Part X of the Act confers jurisdiction on this Court with respect to appeals, including against decisions under Part VII at first instance. Nothing in either Part suggests that the amendments to Part VII of the Act impact or were intended to impact, upon Part X.
Evidence
Evidence Before The Court
From Allesch, their Honours in the High Court in Ward referred in particular to what Gaudron, McHugh, Gummow and Hayne JJ said (which so far as presently relevant) was:The matter of the appeal to the Full Court20.The nature of the appeal to the Full Court is to be discerned from s 93A(2) of the Family Law Act 1975 (Cth) (the Act), which was considered by this Court in CDJ v VAJ and in DJL v Central Authority and, also, from s 94 of the Act. Section 93A(2) provides that, subject to s 96, which is concerned with appeals from courts of summary jurisdiction:"... in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, …21.…And s 94(2) provides:"Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate."22.The majority in CDJ v VAJ proceeded on the basis that an appeal under s 94(1) of the Act is an appeal by way of rehearing. That is undoubtedly correct. So much is to be discerned from the terms of s 93A(2), in particular its conferral of power to receive further evidence. That is not a power possessed by appellate courts whose jurisdiction is confined to appeals in the strict sense and whose function it is simply to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. And an appeal under s 94(1) is, as s 93A(2) indicates, to be distinguished from an appeal under s 96 which is a hearing de novo. (footnotes omitted, emphasis added) In Allesch, Gaudron, McHugh Gummow and Hayne JJ also said:23. For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. (footnotes omitted, emphasis added)
Decision
Reasons for decision
Their Honours’ reasons are lengthy, comprising some 679 paragraphs. Towards the end of their reasons, under the heading “(c) Conclusions on the appeals” commencing at paragraph 554, their Honours say:554.For the general reasons we have given in respect of the extinguishment issues that arise in relation to the Ord Project, we are of the opinion that in respect of the area covered by the Argyle Diamond Project also, all native title has been extinguished. …555.These general considerations apart, we should also specifically consider the particular matters relied upon by the trial judge in coming to his conclusion that native title had not been extinguished:…574.For reasons similar to those we have given in respect of the Argyle lease, we have difficulty accepting his Honour's analysis.575.It will be convenient to consider the mining leases first. Their Honours in the Full Court of the Federal Court then consider a series of “determinations” in a manner which, in our view, obviously includes re-determination. It is as part of this process that the passage quoted in the judgment of the majority in the High Court (paragraph 68 of the High Court judgment, set out earlier), and upon the High Court’s disapproval of which Ms Cotter-Moroz places such weight, appears. The more specific context is:Titles Validation Amendment Act 1999 (WA)659.The Alligator appellants …, sought to invoke the Titles Validation Amendment Act which was assented to and came into effect on 12 May 1999, after the trial judge delivered the judgment. …. It was contended that if native title had not already been extinguished in respect of a number of grants to particular appellants within the Alligator group, that Act would have the effect of validating the grants and confirming extinguishment. In light of the conclusions that we have reached as to extinguishment, the premise on which the alternative submissions are advanced does not arise. However, it should be noted that a right of appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is an appeal in the strict sense and not by way of re-hearing. Accordingly, the Court must consider and apply the law as it stood at the date of the hearing at first instance, and not at the date of hearing of the appeal: Duralla Pty Ltd v Plant (1984) 2 FCR 342 and Petreski v Cargill (1987) 18 FCR 68. If legislation which comes into force after the operative date of the determination affects native title in a way that contradicts the determination, power exists under s 13(1) of the NTA for the Court on application under s 61 to vary or revoke an approved determination. We return to Ms Cotter-Moroz's submissions about the High Court's reasoning in the appeal to that court in Ward. In particular, we pose the question whether, in referring to the law that the Full Court should have regarded as applicable, their Honours in the High Court were addressing the Full Court’s redetermination, rather than the Full Court’s examination of whether there was merit in the grounds of appeal. We consider the following passages point to the former, rather than the latter, situation.
Ratio Decidendi
Legal Principle Established
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