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
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 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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