WILLETTS & NASON

[2020] FamCAFC 213

FAMILY COURT OF AUSTRALIA

WILLETTS & NASON [2020] FamCAFC 213

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appealed order provides the mother with sole parental responsibility – Where the parties were not given the opportunity to be heard on the point – Denial of procedural fairness – Appeal allowed by consent.

Family Law Act 1975 (Cth) s 94AAA(3)

APPELLANT: Mr Willetts

RESPONDENT: Ms Nason

FILE NUMBER: NCC 3883 of 2019

APPEAL NUMBER: EAA 101 of 2020

DATE DELIVERED: 28 August 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 26 August 2020

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 23 June 2020

LOWER COURT MNC: [2020] FCCA 1665

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Tregligas

SOLICITOR FOR THE APPELLANT: Brendan Ellis Solicitor

COUNSEL FOR THE RESPONDENT: Mr Mooney

SOLICITOR FOR THE RESPONDENT: Jennifer Blundell & Associates

Orders made by consent:

1. The appeal be allowed.

2. That Order 1 of the orders dated 23 June 2020 be set aside.

3. The proceedings be remitted to the Federal Circuit Court of Australia for hearing by a judge other than Judge Costigan.

4. There be no order as to costs.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 101 of 2019
File Number: NCC 3883 of 2019

Mr Willetts

Appellant

And

Ms Nason

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal against interim parenting orders made in the Federal Circuit Court of Australia on 23 June 2020.  The appeal is brought by Mr Willetts (“the father”) in proceedings between him and Ms Nason (“the mother”).  The orders relate to Y, born in 2014 (“the child”).

2. Order 1 of the orders dated 23 June 2020, provide the mother with sole parental responsibility for this child.  By a Notice of Appeal filed on 21 July 2020, the father appealed that order.  His Notice of Appeal asserts one ground of appeal, that is that the primary judge erred by “denying [him] natural justice and procedural fairness in determining the issue of parental responsibility”.

3. In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that the appeal be determined by a single judge.

4. The matter was listed before me today for procedural hearing.  Prior to the commencement of the hearing the parties provided a Minute of Consent Orders, requesting the Court allow the appeal and for the proceedings to be remitted for hearing in the Federal Circuit Court before a judge other than the primary judge.

5. In submissions made by counsel for the parties it was established that the primary judge had before her an application by the mother seeking sole parental responsibility for the child.  However, it was said that the primary judge refused to hear the application and indicated that if it was pressed the entire application for interim orders would be adjourned.  Thus, the mother did not press her application for sole parental responsibility and the hearing proceeded.   Notwithstanding this, an order providing the mother with sole parental responsibility was made (Order 1).

6. I agree with the parties that this was clearly a denial of procedural fairness.  The remedy for which, is that the order should be set aside and the matter should be remitted to the Federal Circuit Court for hearing by a different judge. 

7. I will order accordingly.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 28 August 2020.

Associate: 

Date:  28 August 2020