WOLLEMAN & WOLLEMAN

Case [2019] FamCAFC 107

FAMILY COURT OF AUSTRALIA

WOLLEMAN & WOLLEMAN [2019] FamCAFC 107

FAMILY LAW – APPEAL – PROCEDURAL – Where the Notice of Appeal failed to disclose any proper grounds of appeal – Where the mother failed to file a summary of argument in time pursuant to procedural orders made by the Regional Appeal Registrar and r 22.21 of the Family Law Rules 2004 (Cth) – Where the mother attempted to file her summary of argument the day before the appeal hearing – Where the father and the Independent Children’s Lawyer reasonably objected to the Full Court receiving the mother’s summary of argument – Where the Full Court determined it was inappropriate to accept the mother’s summary of argument – Where the mother did not provide a transcript of proceedings – Where the appeal could have been deemed as abandoned – Where leave was granted allowing the mother to reinstate the appeal absence of a transcript – Where leave granted for the mother to prosecute her grounds of appeal orally in the absence of a summary of argument.

FAMILY LAW – APPEAL – PARENTING – Where there are two children of the relationship – Where the appellant mother’s main contention on appeal was that the primary judge failed to consider the appellant’s fixed belief that the respondent father had sexually abused the eldest child – Where the primary judge considered allegations of family violence and sexual abuse – Where the appellant failed to establish that the primary judge was in error – Where the findings made by the primary judge were open on the evidence – Where the primary judge had conducted the proceedings appropriately – Where no merit to certain grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent father did not seek costs – Where the Independent Children’s Lawyer sought a cost order against the mother in the event the appeal was unsuccessful – Where s 117(4) of the Family Law Act 1975 (Cth) operates as a legislative hurdle – Where the mother has been in receipt of Legal Aid during the proceedings – Where the mother would face substantial hardship if ordered to pay the Independent Children’s Lawyer’s costs – Where no order as to costs.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 60I, 69ZN(4), 69ZN(7), 69ZP, 69ZX(1), 69ZX(2), 93A(2), 117(4)

Family Law Rules 2004 (Cth) r 22.21
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
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
M v M (1988) 166 CLR 69; [1988] HCA 68
National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29
SS Hontestroom v SS…

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WOLLEMAN & WOLLEMAN [2019] FamCAFC 107
Case
[2019] FamCAFC 107
Decision Date

CaseChat Overview and Summary

The appeal before the Full Court of the Family Court of Australia concerned the parenting arrangements for two children of the relationship. The mother, the appellant, challenged the orders made by Judge Terry, which were rendered on 21 March 2018. The primary contention of the appellant was that the primary judge had failed to consider her fixed belief that the respondent father had sexually abused the eldest child. The father and the Independent Children's Lawyer opposed the appeal, arguing that the appeal was procedurally flawed and without merit.

The legal issues addressed by the court involved both procedural and substantive aspects of the appeal. Procedurally, the court examined whether the Notice of Appeal disclosed proper grounds, whether the appellant complied with procedural orders, and if the appeal could be considered abandoned. The court also needed to assess the substantive merits of the appeal, particularly whether the primary judge erred in failing to consider the appellant's allegations of sexual abuse and whether the primary judge's findings were open on the evidence.

The court found that the Notice of Appeal did not properly disclose any grounds of appeal, and the appellant failed to file a summary of argument as required. Despite the appellant's attempt to file a summary of argument on the eve of the hearing, the court determined it was inappropriate to accept it, given the objections from the father and the Independent Children's Lawyer. The court noted that the appeal could have been deemed abandoned due to these procedural shortcomings. However, the court granted leave for the appeal to proceed, allowing the mother to prosecute her grounds of appeal orally in the absence of a summary of argument. On the merits, the court found that the primary judge had considered the allegations of family violence and sexual abuse, and the findings were open on the evidence. Consequently, the appeal was dismissed.

The court dismissed the appeal against the orders of Judge Terry made on 21 March 2018 and made no order as to costs. The Independent Children's Lawyer had sought a cost order against the mother in the event the appeal was unsuccessful, but the court noted that s 117(4) of the Family Law Act 1975 (Cth) presented a legislative hurdle, and the mother's receipt of Legal Aid during the proceedings and the potential for substantial hardship meant no costs order was made.

Orders

Orders of the court

1.

The appeal against the orders of Judge Terry made on 21 March 2018 be dismissed.

2.

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.

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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