Tryon & Clutterbuck - [2007] FamCA 580

FAMILY COURT OF AUSTRALIA

TRYON & CLUTTERBUCK

[2007] FamCA 580

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT OF AUSTRALIA - Appeal against order of Federal Magistrate that named persons undergo parentage testing

FAMILY LAW - APPEAL – GIVING REASONS – Discussion of whether order for parentage testing under s 69W Family Law Act 1975 is a “parenting order” - Established that Federal Magistrate gave inadequate reasons or that the reasons given failed to have regard to certain material facts or circumstances. Sections 69W, 64B, 60CA, and 60CC of Family Law Act 1975 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 followed.

Family Law Act 1975 ss 69W, 64B, 60CA and 60CC

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

MRS TRYON AND MR TRYON

RESPONDENT:

MR CLUTTERBUCK

FILE NUMBER:

EAA

111

2006

DATE DELIVERED:

04 May 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

04 May 2007

LOWER COURT JURISDICTION:

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE:

13/10/06

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR BURKE

SOLICITOR FOR THE APPELLANT:

C M EDWARDS

COUNSEL FOR THE RESPONDENT:

MR COUSTAS

SOLICITOR FOR THE RESPONDENT:

COUSTAS & CO

Orders

Appeal allowed. The matter should be remitted for rehearing by another Federal Magistrate at the earliest opportunity.
Each party is to have a costs certificate with respect to the appeal and with respect to the rehearing of the proceedings.
An Independent Children’s Lawyer will be appointed under s 68L of the Family Law Act 1975.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment in the Full Court delivered this day will for all publication and reporting purposes be referred to as Tryon & Clutterbuck.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

File Number: EAA 111 of 06

MRS TRYON AND MR TRYON

Appellants

And

MR CLUTTERBUCK

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Mrs Tryon and Mr Tryon (“the appellants”) against orders made by a learned Federal Magistrate on 13 October 2006 in proceedings brought initially against the first appellant, and ultimately against both appellants by Mr Clutterbuck (“the respondent”).
The appellants’ Notice of Appeal, filed 3 November 2006, challenged an order made by the learned Federal Magistrate the previous month which provided that the children and others referred to in the order undergo what can, for the purpose of this appeal, be described as parentage testing (order 2). The orders further provided the mechanics by which this substantive order was to be implemented and its objects achieved.
Background
Reference to the background of the proceedings provides context to the appeal and lays the foundation for understanding the challenge to his Honour’s decision by the appellants and the basis upon which counsel for the respondent has resisted the appeal.
The matter came before the learned Federal Magistrate on 13 October 2006 at about 12.49pm. It is reasonably apparent, although ultimately not decisive of anything in this appeal, that 13 October 2006 was the return date of…

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.

Continue reading Tryon & Clutterbuck

Details

AGLC: Tryon & Clutterbuck [2007] FamCA 580
Case: [2007] FamCA 580
Decision Date: 4 May 2007

CaseChat Overview and Summary

The appeal concerned an order made by a Federal Magistrate requiring named persons, including children, to undergo parentage testing. The appellants challenged this order, which had been made on an oral application and without formal written request from either party.

The court was required to determine whether the Federal Magistrate gave adequate reasons for the parentage testing order, and whether those reasons had regard to all relevant material facts and circumstances. The court also considered whether an order for parentage testing under section 69W of the *Family Law Act 1975* constitutes a "parenting order" for the purposes of the Act.

Coleman J allowed the appeal, finding that the Federal Magistrate had provided inadequate reasons for the order or failed to consider certain material facts and circumstances. The court applied principles established in *Soulemezis v Dudley (Holdings) Pty Ltd* and relevant sections of the *Family Law Act 1975*, including sections 69W, 64B, 60CA, and 60CC.

The appeal was allowed, and the matter was remitted for rehearing by another Federal Magistrate. Each party was granted a costs certificate for the appeal and the rehearing, and an Independent Children’s Lawyer was to be appointed.

Orders

Orders of the court

Appeal allowed. The matter should be remitted for rehearing by another Federal Magistrate at the earliest opportunity.

Each party is to have a costs certificate with respect to the appeal and with respect to the rehearing of the proceedings.

An Independent Children’s Lawyer will be appointed under s 68L of the Family Law Act 1975.

Background

Background to the litigation

The appellants’ Notice of Appeal, filed 3 November 2006, challenged an order made by the learned Federal Magistrate the previous month which provided that the children and others referred to in the order undergo what can, for the purpose of this appeal, be described as parentage testing (order 2). The orders further provided the mechanics by which this substantive order was to be implemented and its objects achieved.Background Reference to the background of the proceedings provides context to the appeal and lays the foundation for understanding the challenge to his Honour’s decision by the appellants and the basis upon which counsel for the respondent has resisted the appeal. The matter came before the learned Federal Magistrate on 13 October 2006 at about 12.49pm. It is reasonably apparent, although ultimately not decisive of anything in this appeal, that 13 October 2006 was the return date of the present respondent’s application for orders that he spend time with two children, those two children being named in the application by which the present respondent commenced proceedings in the Federal Magistrate’s Court on 8 September 2006. A response of the only respondent to the present respondent’s application at that time, filed on or about 6 October 2006, opposed the relief sought both on an interim and final basis by the present respondent. As is apparent from reading the pleadings to which reference has been made, the order which gives rise to this appeal was not, in fact, sought by either party prior to 13 October 2006 and was not, on that date, the subject of any formal written application. The matter appears from the early part of the record to have come before his Honour in essence for his Honour to glean what the matter was about, and what might properly be done with it in the course of what was clearly a busy judicial day for his Honour (Appeal Book page 50). His Honour was told what the matter was about and the present respondent flagged, accurately there is no doubt, whether or not the paternity of the children referred to in the present respondent’s application was in issue (Appeal Book page 51). The matter then progressed with counsel for the present respondent seeking leave to make an oral application for paternity testing. Counsel for the present first appellant consented to the oral application being made but clarified so that there could be no doubt, that the order for paternity testing itself was opposed. Counsel for the respondent to this appeal concedes this to have been the case. There was then some discussion about what was to happen with the case. His Honour requested, and was given, an estimate of the time the matter would possibly take, that being that on an interim basis it would take one to two hours (Appeal Book page 52). Just what that interim basis was is less than entirely clear but not of critical significance in any event. His Honour at this stage, which was, one might reasonably think, coming close to the lunch adjournment, indicated that he had probably another six hours of judicial work ahead of him in the remainder of the day. He then said, accurately there is no doubt, that he would “hold out no chance of this matter receiving any attention today” (Appeal Book page 52, lines 7 – 8). The matter was then, it seems by agreement between counsel, going to be adjourned to another day.

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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