Willis & Haering

Case [2024] FedCFamC1A 3


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Willis & Haering [2024] FedCFamC1A 3

Appeal from: Haering & Willis [2023] FedCFamC1F 672
Appeal number(s): NAA 237 of 2023
File number(s): BRC 12158 of 2020
Judgment of: TREE, HOWARD & BRASCH JJ
Date of judgment: 25 January 2024
Catchwords:

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant sought to adduce evidence that was reasonably available at time of trial – Where the proposed evidence would not have produced a different outcome at the trial – Application in an Appeal dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the appellant mother alleges procedural unfairness and bias on the part of the primary judge – No unfairness or bias established – Where none of the other grounds of appeal relied upon were successful – No error established on the part of the primary judge – Appeal dismissed – Each party to bear their own costs.

Legislation:

Evidence Act 1977 (Qld) s 93A

Evidence Act 1995 (Cth) ss 121, 122

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CG, 68P, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 35, 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 6.26

Cases cited:

Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Brunskill v Sovereign Marine & General Insurance Co Ltd (1985) 59 ALJR 842; [1985] HCA 61

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Coal & Allied Operations Pty Limited v Australian

Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Concrete Pty Limited vParramattaDesign and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

DB v British Columbia (Director of Child, Family and Community Service)[2002] B.C.J. No. 253

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Eagle v Scarlett (No 2) [2020] FamCAFC 291

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

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johanson v Johanson (2022) 66 Fam LR 95; [2022] FedCFamC1A 74

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

OP v TP & The Child Representative (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SS Hontestroom v SS Sagaporack [1927] AC 37

Strickland v Washington (1984) 466 US 668

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Number of paragraphs: 83
Date of last submission/s: 22 November 2023
Date of hearing:

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AGLC
Willis & Haering [2024] FedCFamC1A 3
Case
[2024] FedCFamC1A 3
Decision Date

CaseChat Overview and Summary

The appeal was brought by Ms Willis against Mr Haering and Ms Haering, concerning a parenting dispute. The case was heard in the Federal Circuit and Family Court of Australia's Appellate Division. The appellant sought to introduce new evidence that was not available during the initial trial, arguing that it could have altered the outcome. Additionally, she alleged procedural unfairness and bias on the part of the primary judge, and challenged several other findings from the trial. The respondents argued that the new evidence would not have affected the trial's outcome and that no procedural unfairness or bias occurred.

The court considered whether the new evidence, if it had been available, could have changed the trial's outcome. It found that the proposed evidence was unlikely to have produced a different result. The court also examined the appellant's claims of procedural unfairness and bias, and concluded that no such issues were present. Furthermore, the court found that the other grounds of appeal were not successful. Given these findings, the court determined that no error had been made by the primary judge.

The court dismissed the appellant's application to adduce new evidence and her claims of procedural unfairness and bias. Since none of the other grounds of appeal were successful, the appeal was dismissed. Each party was ordered to bear their own costs.

The orders of the court were that the application in an appeal filed on 6 November 2023 and the application in an appeal filed on 21 November 2023 were dismissed. The amended notice of appeal was also dismissed, as was the respondent's application for costs.

Orders

Orders of the court

NAA 237 of 2023

BRC 12158 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS WILLIS

Appellant

AND:

MR HAERING

First Respondent

MS HAERING

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

TREE, HOWARD & BRASCH JJ

DATE OF ORDER:

25 JANUARY 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 6 November 2023 is dismissed.

2. The Application in an Appeal filed 21 November 2023 is dismissed.

3. The Amended Notice of Appeal is dismissed.

4. The respondent’s application for costs is 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

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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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