SOTTO & HENSLEY

Case [2020] FamCAFC 221

FAMILY COURT OF AUSTRALIA

SOTTO & HENSLEY [2020] FamCAFC 221

FAMILY LAW – APPEAL – PARENTING – Where the primary judge summarily dismissed the appellant father’s application to adjourn proceedings, have arms-length association with the child and for the surname of the child to be hyphenated with his and the respondent mother’s surname – Where the child is mature and has fixed views – Best interests of the child – Procedural fairness – Weight challenges – No error of fact or law established – Findings open to the primary judge – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – NOTICE OF CONTENTION – Repetition of submissions made on appeal by the mother – Notice of Contention dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Inadmissible and irrelevant evidence – Application dismissed.
Family Law Act 1975 (Cth) ss 45A, 60CC
Hague Convention on the Civil Aspects of International Child Abduction
Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; [1963] HCA 41
Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238; [2002] HCA 36
Whisprun Pty Ltd vDixon (2003) 200 ALR 447; [2003] HCA 48
APPELLANT: Mr Sotto
RESPONDENT: Ms Hensley
INDEPDENT CHILDREN’S LAWYER Peter Lynch Lawyer (not participating)
FILE NUMBER: MLC 4210 of 2007
APPEAL NUMBER: SOA 67 of 2019
DATE DELIVERED: 4 September 2020
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne (via video link)
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 17 August 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 23 October 2019
LOWER COURT MNC: [2019] FCCA 3358

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Smith
SOLICITOR FOR THE APPELLANT: Dandenong Family Lawyers
THE RESPONDENT: Litigant in person
INDEPENDENT CHILDREN’S LAWYER Peter Lynch Lawyer (not participating)

Orders

  1. The Notice of Contention filed on 7 April 2020 is dismissed.

  2. The Application in an Appeal to adduce further evidence filed on 14 April 2020 is dismissed.

  3. The appeal against the orders of a judge of the Federal Circuit Court made on


    23 October 2019 is dismissed.

  4. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sotto & Hensley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family…

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AGLC
SOTTO & HENSLEY [2020] FamCAFC 221
Case
[2020] FamCAFC 221
Decision Date

CaseChat Overview and Summary

Sotto and Hensley is a case where the appellant father sought to appeal several orders made by a primary judge in the Federal Circuit Court. The primary judge had dismissed the father’s application to adjourn proceedings, denied the father’s requests for an arms-length association with his child and to hyphenate the child’s surname with his and the respondent mother’s surname. The child in question is mature and has expressed strong views on the matter. The father argued that the primary judge had erred in his decision-making process, but the court found no such error.

The court had to consider several legal issues, including whether the primary judge had made an error of fact or law, whether the findings were open to the primary judge, and if the best interests of the child were adequately considered. The court also examined procedural fairness and the weight given to certain evidence. After thorough analysis, the court determined that the primary judge had not made any errors and that the findings were open to him. The court also found that the primary judge had appropriately considered the child’s best interests.

In dismissing the appeal, the court held that the primary judge’s decisions were sound and that no error of fact or law had been established. The court also dismissed a Notice of Contention filed by the mother and an Application in an Appeal by the father to adduce further evidence. This evidence was deemed inadmissible and irrelevant. Consequently, the appeal was dismissed, and no order was made regarding costs.

Orders

Orders of the court

1.

The Notice of Contention filed on 7 April 2020 is dismissed.

2.

The Application in an Appeal to adduce further evidence filed on 14 April 2020 is dismissed.

3.

The appeal against the orders of a judge of the Federal Circuit Court made on

23 October 2019 is dismissed.

4.

There be no order as to costs.

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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