Vanetti & Harrison

Case [2023] FedCFamC1A 180

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Vanetti & Harrison [2023] FedCFamC1A 180  

Appeal from: Vanetti & Harrison [2023] FedCFamC1F 563
Appeal number(s): NAA 190 of 2023
File number(s): MLC 11706 of 2019
Judgment of: TREE, KARI & CAMPTON JJ
Date of judgment: 23 October 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – PROPERTY – Where the mother appeals from final parenting and property settlement orders – Where these reasons are given in short form given the appeal raises no question of general principle – Procedural fairness – Appeal from discretionary judgment – Where no error of the kind identified by House v The King (1936) 55 CLR 499 is identified by the grounds – Where no ground of appeal succeeds – Appeal dismissed – Where each party should bear their own costs.
Legislation:

Family Law Act 1975 (Cth) ss 102NA, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

De Winter v De Winter (1979) 23 ALR 211

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 78
Date of hearing: 28 September 2023
Place: Heard in Melbourne, delivered in Cairns
The Appellant: Litigant in person
Counsel for the Respondent: Mr Thompson
Solicitor for the Respondent: Melbourne Family Lawyers
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid (did not participate)

ORDERS

NAA 190 of 2023
MLC 11706 of 2019

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

MS VANETTI

Appellant
AND:

MR HARRISON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE, KARI & CAMPTON JJ

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:

1.The appeal be dismissed.

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.

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

REASONS FOR JUDGMENT

TREE, KARI & CAMPTON JJ:

INTRODUCTION

  1. On 12 July 2023, for written reasons…

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AGLC
Vanetti & Harrison [2023] FedCFamC1A 180
Case
[2023] FedCFamC1A 180
Decision Date

CaseChat Overview and Summary

In the matter of Vanetti & Harrison, the mother, Ms Vanetti, appealed against the final parenting and property settlement orders made by the primary judge. The appeal was dismissed by the Federal Circuit and Family Court of Australia. The appeal did not raise any question of general principle, so the reasons for judgment were provided in short form. The mother had contended 13 grounds of appeal, but the court found no merit in any of them.

The legal issues the court was required to decide included whether there was an error in the primary judge's exercise of discretion, as per the principles established in House v The King. The court held that the mother had not established any error of the kind identified in House, and therefore, the appeal from the discretionary judgment should not succeed. The court also noted that the mother's Notice of Appeal was irregularly drafted, including the entire 80 pages of the primary judge's reasons and extraneous material, which did not assist in the appeal process.

The court's reasoning was that the mother's grounds of appeal did not identify any error in the primary judge's exercise of discretion. The court found that the primary judge had considered all relevant material and had not acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or failed to take into account some material consideration. The court also found that the orders were not unreasonable or plainly unjust. Therefore, the appeal was dismissed, and each party was ordered to bear their own costs.

The final orders of the court were that the appeal be dismissed, and each party should bear their own costs. The form of the order was subject to review to remedy minor typographical or grammatical errors or to record a variation to the order. The court's reasons for judgment may also be subject to review under the relevant rules.

Orders

Orders of the court

NAA 190 of 2023

MLC 11706 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS VANETTI

Appellant

AND:

MR HARRISON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE, KARI & CAMPTON JJ

DATE OF ORDER:

23 OCTOBER 2023

THE COURT ORDERS THAT:

1. The appeal be dismissed.

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

For the reasons which follow, the appeal will be dismissed. As the appeal raises no question of general principle, these reasons are in short form (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).BACKGROUND The father is presently 46 years of age and is a professional. The mother is presently 44 years of age and employed in administration. The parties met in Country D (where the mother then lived) in 2012, married there in June 2013, and moved to Australia later that year. Their eldest child, X, was born in 2014, making him presently nine years of age. Their youngest child, Y, was born in 2017, making him presently six years old. The parties separated in April 2019, thereby concluding a relationship of about six years duration. These proceedings were commended by the mother in October 2019, with the trial of them commencing before the primary judge in February 2022, and ultimately concluding on 19 August of that year, having occupied some ten days of hearing.THE APPEAL The mother’s Notice of Appeal contended some 13 grounds, however, as filed, ran in excess of 100 pages. In large part that was because, inexplicably, her Notice of Appeal included the entire 80 pages of the primary judge’s reasons, together with other extraneous material. However it was also because, in addition to stating the grounds of appeal, the mother also, in effect, included under each ground a summary of her argument in relation to it. Perhaps because of that irregular drafting style, the mother’s Summary of Argument, whilst only 15 pages in length, did not in fact summarise her arguments in relation to the grounds, and in fact, barely referred to any ground at all. Rather it proceeded as some kind of running critique of selected aspects of the primary judge’s reasons. We shall only have regard to it to the extent it is germane to the grounds of appeal. At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House”) must be established. There, the majority of the High Court said:…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…

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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