Stock & Stock

Case [2024] FedCFamC1A 210

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Stock & Stock [2024] FedCFamC1A 210

Appeal from: Stock & Stock [2024] FedCFamC2F 748
Appeal number(s): NAA 179 of 2024
File number(s): CAC 230 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 12 November 2024
Catchwords: FAMILY LAW – APPEAL – Parenting – Procedural fairness – Where primary judge made orders different from agreed orders and outside the ambit of disputed orders sought by the parties without giving the parties an opportunity to be heard – Where lack of procedural fairness material to outcome – Where parental responsibility orders set aside parenting orders must also be set aside due to possibility of s 65DAA being engaged in case heard before 2024 Amendments – Grounds of appeal established – Matter remitted for rehearing – Costs certificates issued.
Legislation:

Family Law Act 1975 (Cth) ss 61DA, 65DAA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Cases cited:

Fazil & Fazil [2024] FedCFamC1A 54

Field & Kingston [2021] FedCFamC1A 66

Guthrie & Guthrie (1995) FLC 92-647; [1995] FamCA 134

KB & TC (sub nom Bolitho and Cohen) (2005) FLC 93-224; [2005] FamCA 458

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17

Robertson & Sento [2009] FamCAFC 49

U v U (2002) 211 CLR 238; [2002] HCA 36

Number of paragraphs: 34
Date of hearing: 29 October 2024
Place: Parramatta
Counsel for the Appellant: Mr Othen, SC
Solicitor for the Appellant: Dobinson Davey Clifford Simpson
Counsel for the Respondent: Mr Havenstein
Solicitor for the Respondent: Neilan Stramandinoli Family Law
Counsel for the Independent Children's Lawyer: Did not participate - Submitting notice filed
Solicitor for the Independent Children's Lawyer: Legal Aid ACT

ORDERS

NAA 179 of 2024
CAC 230 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR STOCK

Appellant
AND:

MS STOCK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Appeal NAA 179 of 2024 be allowed.

2.That the proceedings be remitted for rehearing.

3.That Orders 1 to 7 made on 14 June 2024 be set aside on the first date that the matter is before a judge or registrar of the Federal Circuit and Family Court of Australia (Division 2) following remittal for re-hearing.

4.That the appellant be granted a costs certificate pursuant to 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 the appellant in relation to the appeal.

5.That the respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court,…

Continue reading Stock & Stock

Sign in free to access the full text

Details
AGLC
Stock & Stock [2024] FedCFamC1A 210
Case
[2024] FedCFamC1A 210
Decision Date

CaseChat Overview and Summary

In the case of Stock & Stock, the Federal Circuit and Family Court of Australia was tasked with reviewing the decision of a primary judge concerning parenting arrangements. The primary judge had made orders that varied from those agreed upon by the parties, without providing the parties an opportunity to be heard. The appellant, Mr Stock, challenged the primary judge's decision on the grounds of procedural unfairness, arguing that the court's failure to allow the parties to be heard materially affected the outcome of the case. The court was required to determine whether the procedural errors warranted the setting aside of the orders and, if so, whether the matter should be remitted for a rehearing.

The court found that the primary judge had indeed erred in failing to allow the parties to be heard, which was a breach of procedural fairness. The court held that because the primary judge made orders outside the ambit of the disputed orders sought by the parties, and given that the parental responsibility orders were set aside, the parenting orders had to be set aside as well. This was particularly relevant due to the potential engagement of section 65DAA of the Family Law Act, which had been repealed in the 2024 amendments but was still applicable to cases heard before that date. The court concluded that the procedural errors were significant enough to establish grounds for appeal.

The court allowed the appeal, set aside the orders made by the primary judge, and remitted the matter for rehearing. The court also granted costs certificates to both parties, recognising the errors of law made by the primary judge. The court emphasised that the rehearing would be conducted afresh, and the final orders might not necessarily be more favourable to the appellant than those set aside. The court ordered that the various disputed orders be discharged on the first return date of the matter following the remittal for rehearing, and that appropriate interim orders could be made by the assigned judge or registrar.

Orders

Orders of the court

NAA 179 of 2024

CAC 230 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR STOCK

Appellant

AND:

MS STOCK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Appeal NAA 179 of 2024 be allowed.

2. That the proceedings be remitted for rehearing.

3. That Orders 1 to 7 made on 14 June 2024 be set aside on the first date that the matter is before a judge or registrar of the Federal Circuit and Family Court of Australia (Division 2) following remittal for re-hearing.

4. That the appellant be granted a costs certificate pursuant to 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 the appellant in relation to the appeal.

5. That the respondent be granted a costs certificate pursuant to 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 costs incurred by the respondent in relation to the appeal.

6. That the appellant and the respondent be granted a costs certificate pursuant to 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 the appellant and the respondent in respect of the costs incurred by them in relation to the new trial ordered.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This particular difficulty would not arise on the current version of the Family Law Act following the 2024 amendments as the relevant provisions have been repealed.CONCLUSIONS As set out above, the orders with respect to parental responsibility (Orders 1 to 5) must be set aside. Order 6 must be set aside for the reasons given with respect to Ground 1. The impact of setting aside the parental responsibility orders is that the orders for living arrangements and spending time must also be set aside. The primary judge did not formally dismiss the appellant’s application to vary Order 7 from Term 3 of this year, although it appears that was his Honour’s intention. Order 7 as made by his Honour is described as a consent order when the consent was only given by the appellant with respect to that order (which provided for the living arrangements for the children for nine nights per fortnight with the respondent) until Term 3 of this year. To the extent that the order remains in force past Term 3 of 2024 it is (on the reasons given by primary judge) an order of the court which (for the reasons set out above) must be set aside. The appellant seeks that the issues be remitted for rehearing as he proposes to lead further evidence. In the circumstances that is the appropriate course in this case. The appellant should note that his success in this appeal may not be reflected in the rehearing as the judge on the rehearing will consider the matters afresh and may make orders that are even more favourable to the respondent than the orders that have been set aside. As there cannot be a lacuna in parenting orders the appropriate course is to order that the various disputed orders be discharged on the first return date of the matter after the matter is remitted for re-hearing. Appropriate interim orders can be made by the judge or registrar assigned to hear the matter on that first court date following remittal. The errors that have led to the appeal being allowed were errors of law by the primary judge that were not induced by the conduct of the parties. It is appropriate that they have certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal and the costs of a new trial.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.