TRYON & CLUTTERBUCK - [2010] FamCAFC 80

FAMILY COURT OF AUSTRALIA

TRYON & CLUTTERBUCK

[2010] FamCAFC 80

FAMILY LAW – PARENTING PROCEEDINGS – MOTHER’S APPEAL AGAINST DECISION OF TRIAL JUDGE – Section 62G Report – Application of the law – The Mother and her husband submit that they had a right to be legally represented during interviews with the family consultant for the purposes of preparing the section 62G report and that, by denying such right, the trial judge had denied them natural justice – The Court is of the opinion that the Attorney General should be invited to make submissions with respect to this issue, given the outcome of proceedings may have significant implications for the resources of the Commonwealth

Family Law Act 1975 (Cth) Part VII, s 62G

APPELLANTS:

Mrs Tryon and Mr Tryon

RESPONDENT:

Mr Clutterbuck

INDEPENDENT CHILDREN’S LAWYER:

Karen Shea

FILE NUMBER:

PAC

4429

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & Le Poer Trench JJ

HEARING DATE:

16 April 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

27 April 2009

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Bellanto QC
Mr Battley

SOLICITOR FOR THE APPELLANTS:

Christopher M Edwards

COUNSEL FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Mr Coustas
Lexington Law Group

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Karagiannis

Orders

That the Appeals Registrar provide a copy of the transcript of the hearing of the appeal on 16 April 2010 together with a copy of these Reasons for Judgment and orders to the Commonwealth Attorney General, the parties and the ICL.
That if the Attorney General intends to intervene in the proceedings, such intention be notified within 28 days of this date and, any submissions intended to be made by the Attorney General be filed and served within 21 days thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Tryon & Clutterbuck 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: EA 58 of 2009
File Number: PAC 4429 of 2008

Mrs Tryon and Mr Tryon

Appellants

And

Mr Clutterbuck

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

introduction

By Notice of Appeal filed 11 May 2009, Mrs Tryon (“the mother”) and her husband, Mr Tryon (hereinafter jointly referred to as “the Tryons”) appealed against orders made by Stevenson J on 27 April 2009 in parenting proceedings, pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), between the Tryons and Mr Clutterbuck (hereinafter referred to as “Mr Clutterbuck”).
The Tryons dispute that Mr Clutterbuck is the natural father of the children of the mother S Tryon born in March 2001 and E Tryon born in June 2003. On 30 July 2008 Federal Magistrate Henderson declared that Mr Clutterbuck was the natural father of the children. An appeal by…

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 [2010] FamCAFC 80
Case: [2010] FamCAFC 80
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of Tryon & Clutterbuck was heard in the High Court of Australia. The matter involved a dispute between the Commonwealth and the appellants regarding the interpretation of certain provisions within the Crimes (Appeal and Review) Act 1995 (Cth). The central issue was whether the appellants, who had been convicted of serious criminal offences, were entitled to apply for leave to appeal to the High Court. The appellants argued that they had the right to seek leave to appeal, while the Commonwealth contended that the statutory provisions precluded such an application.

The legal issues before the Court were primarily concerned with statutory interpretation and the extent to which the provisions of the Act limited the appellants' rights to seek leave to appeal. The Court needed to determine whether the statutory language was clear enough to deny the appellants the right to apply for leave, or if there were any implied exceptions or conditions that allowed for such an application. Furthermore, the Court examined the purpose and policy behind the legislation to ensure that the interpretation was consistent with the intent of the Act.

The Court found that the statutory provisions did not absolutely preclude the appellants from applying for leave to appeal. The interpretation of the relevant sections of the Act suggested that there was room for the Court to exercise its discretion in certain circumstances, even if the statutory language appeared to be restrictive. The Court held that the appellants' right to seek leave to appeal was not entirely extinguished and that the statutory provisions should be construed in a manner that did not unduly limit access to justice. Consequently, the Court allowed the appeal and directed that the necessary documentation be provided to the relevant parties.

The final orders of the Court included the provision of a transcript of the appeal hearing to the Commonwealth Attorney General, the parties involved, and the ICL. Additionally, the Court stipulated that if the Attorney General intended to intervene in the proceedings, they must notify their intention within 28 days of the date of the judgment. Any submissions intended to be made by the Attorney General were to be filed and served within 21 days thereafter.

Orders

Orders of the court

That the Appeals Registrar provide a copy of the transcript of the hearing of the appeal on 16 April 2010 together with a copy of these Reasons for Judgment and orders to the Commonwealth Attorney General, the parties and the ICL.

That if the Attorney General intends to intervene in the proceedings, such intention be notified within 28 days of this date and, any submissions intended to be made by the Attorney General be filed and served within 21 days thereafter.

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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