FAMILY COURT OF AUSTRALIA
| SINNOTT & FIRTH (NO. 2) | [2013] FamCAFC 159 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals final parenting orders made in his absence at a “trial callover” – where the Federal Magistrate made final parenting orders at the “trial callover” notwithstanding that the appellant’s solicitor was present, and indicated to the court that the appellant wished to proceed with his application for parenting orders – where no reasons were given by the Federal Magistrate at the time the final parenting orders were made and there was no indication that reasons would be forthcoming – where reasons were given after the appellant’s Notice of Appeal was filed – where it is not apparent what power the Federal Magistrate was relying upon to make the final parenting orders – where it appears the Federal Magistrate made the orders on the basis of want of prosecution on the part of the appellant – where none of the parties anticipated the making of final parenting orders at the “trial callover” – whether the appellant was denied procedural fairness – where the appellant was denied procedural fairness – final parenting orders set aside. FAMILY LAW – APPEAL – CHILDREN – where the Federal Magistrate made final parenting orders notwithstanding that he had expressly eschewed a consideration of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) – where the Federal Magistrate made an order for sole parental responsibility without considering s 61DA or s 60CC of the Act – whether the Federal Magistrate made an error of law – where an error of law has been demonstrated – parenting orders set aside. |
| Family Law Act 1975 (Cth) Federal Circuit Court of Australia Act 1999 (Cth) |
| Cox v Pedrana (2013) 48 FamLR 651 Guse v Comcare (1997) 49 ALD 288 Knibbs & Knibbs [2009] FamCA 840 Kyriakos & Kyriakos [2013] FamCAFC 22 MRR v GR (2010) 240 CLR 461 Rollings & Rollings [2009] FamCAFC 87 Spencer v The Commonwealth (2010) 241 CLR 118 Stead v State Government Insurance Commission (1986) 161 CLR 141 Warren v Coombes (1979) 142 CLR 531 Yates & Yates [2012] FamCAFC 219 |
| APPELLANT: | Mr Sinnott |
| RESPONDENT: | Ms Firth |
| INDEPENDENT CHILDREN'S LAWYER: | Barbara Fox Solicitors |
| FILE NUMBER: | BRC | 517 | of | 2011 |
| APPEAL NUMBER: | NA | 8 | of | 2013 |
| DATE DELIVERED:: | 9 October 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 27 August 2013 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | Judgment: 19 March 2013 Orders: 3 December 2012 |
| LOWER COURT MNC: | [2013] FMCAfam 229 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr O’Neill |
| SOLICITOR FOR THE APPELLANT: | Michelle Porcheron Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Mr Waller, Solicitor of Carne Reidy Herd |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Mr Hodges |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Barbara… |
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- AGLC
- SINNOTT & FIRTH (NO. 2) [2013] FamCAFC 159
- Case
- [2013] FamCAFC 159
- Decision Date
CaseChat Overview and Summary
The court also found that the Federal Magistrate made an error of law by not considering sections 60CC and 61DA of the Family Law Act 1975 (Cth) when making the final parenting orders. The court held that the Federal Magistrate's decision to make the final parenting orders without considering these sections was a legal error. Consequently, the parenting orders were set aside. The appeal was allowed, and the final parenting orders made by the Federal Magistrate were set aside. Additionally, the court granted certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to both parties for the costs incurred in relation to the appeal, and dismissed the application by the Independent Children's Lawyer for a certificate.
Orders
Orders of the court
1. The appeal be allowed.
2.Paragraphs 1 to 8 of the Orders made by Howard FM on 3 December 2012 be set aside.
3.That pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.That pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
5.The application by the Independent Children’s Lawyer for a certificate pursuant to the Costs Act is dismissed.
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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