Vanzin & Vanzin

Case [2014] FamCAFC 245

FAMILY COURT OF AUSTRALIA

VANZIN & VANZIN [2014] FamCAFC 245

FAMILY LAW – APPEAL – APPEAL OF INTERIM JUDGMENT – CHILDREN – Where the father appeals an interim judgment – Where trial judge made orders based on least contested evidence available to his Honour  – Where trial judge failed to expressly consider the legislative wording in s 60CC – Where trial reasons were brief – Whether trial judge properly observed the principles applicable to interim proceedings – Whether trial judge properly observed the principles applicable to the s 61DA presumption – Where the court held that interim proceedings do not obviate the need to consider s 60CC considerations and provide adequate reasons – Where the court held that the trial judge’s reasons implicitly and briefly considered the interests of the child and the evidence before the court – Where the court held that s 65DAA(6) applied to a shared parenting agreement made by consent – Appeal dismissed. General observations on the exigencies of busy trial lists and trial judges’ duties.

Family Law Act 1975 (Cth)
Family Law Regulations 1984

Gronow & Gronow (1979) 144 CLR 513
Goode & Goode (2006) FLC 93-286
Lenova & Lenova (Costs) [2011] FamCAFC 141
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT: Mr Vanzin
RESPONDENT: Ms Vanzin
FILE NUMBER: BRC 7880 of 2012
APPEAL NUMBER: NA 63 of 2014
DATE DELIVERED: 5 December 2014
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Murphy J
HEARING DATE: 4 December 2014
LOWER COURT JURISDICTION: Federal Circuit Court
LOWER COURT JUDGMENT DATE: 23 October 2014
LOWER COURT MNC: [2014] FCCA 2590

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr G Waterman
SOLICITOR FOR THE APPELLANT: Direct Access Brief
COUNSEL FOR THE RESPONDENT: Mr P Baston
SOLICITOR FOR THE RESPONDENT: Lynn & Rowland Lawyers 

Orders

IT IS ORDERED:

  1. That the appeal from the Orders of Judge Howard dated 23 October 2014 be dismissed.

  2. That the appellant father pay the respondent mother’s costs of and incidental to the appeal, including the costs of and incidental to the Application in an Appeal for expedition, in such amount as is agreed in writing between the parties or, failing such agreement, as assessed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 7880 of 2012

APPEAL NUMBER:  NA63 of 2014

Mr Vanzin

Appellant

And

Ms Vanzin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1.The father of the child, born in 2009, appeals interim parenting orders made by Judge Howard on 23 October 2014.  On 17 November 2014 May J ordered, with the consent of the parties, that the appeal be heard expeditiously in the December sittings of the Full Court.

2.Also on that day Finn J, as the delegate of the Chief Justice, certified, pursuant to section 94AAA(3) of the Family Law…

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Vanzin & Vanzin [2014] FamCAFC 245
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[2014] FamCAFC 245
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CaseChat Overview and Summary

Vanzin & Vanzin involved an appeal from an interim judgment concerning children. The father appealed against an interim judgment made by Judge Howard on 23 October 2014. The primary issue in the appeal was whether the trial judge had properly considered the statutory provisions and principles applicable to interim proceedings in family law, specifically the requirements of section 60CC of the Family Law Act and the presumption under section 61DA. The father argued that the trial judge did not adequately consider these provisions and had made orders based on the least contested evidence available.

The court examined whether the trial judge had properly considered the legislative wording in section 60CC, which requires the court to consider the best interests of the child in making parenting orders. The court noted that while the trial judge's reasons were brief, they implicitly considered the interests of the child and the evidence before the court. The court also considered whether the trial judge had properly observed the principles applicable to interim proceedings, as well as the presumption under section 61DA. The court concluded that the trial judge's reasons, although brief, sufficiently demonstrated consideration of the child’s interests and the evidence.

In dismissing the appeal, the court emphasised that interim proceedings do not obviate the need to consider the statutory considerations and provide adequate reasons. The court further observed that section 65DAA(6) applied to a shared parenting agreement made by consent, as argued by the father. The court held that the trial judge's reasons, though brief, were sufficient and that the appeal was dismissed. The father was ordered to pay the mother's costs of and incidental to the appeal, in an amount to be agreed upon by the parties or assessed if no agreement is reached.

Orders

Orders of the court

IT IS ORDERED:

1.

That the appeal from the Orders of Judge Howard dated 23 October 2014 be dismissed.

2.

That the appellant father pay the respondent mother’s costs of and incidental to the appeal, including the costs of and incidental to the Application in an Appeal for expedition, in such amount as is agreed in writing between the parties or, failing such agreement, as assessed.

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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