Yorston & Yorston - [2013] FamCAFC 49

FAMILY COURT OF AUSTRALIA

YORSTON & YORSTON

[2013] FamCAFC 49

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE –
CHILDREN – with whom a child lives – with whom a child spends time – where the Federal Magistrate delivered ex tempore Reasons and then sought orders from the parties reflecting those Reasons – where the orders forwarded by the respondent mother formed the bulk of the final orders – where the orders provided by each party were not served on the other – where several orders do not reflect the Reasons – where the appellant father alleges a denial of procedural fairness – whether the appellant father was denied procedural fairness – where the orders made did not reflect the Reasons – appeal allowed and parenting proceedings remitted.

FAMILY LAW – APPEAL – Application to amend grounds of appeal – where counsel for the appellant father sought to amend the grounds of appeal during the hearing of the appeal – where the respondent mother was self-represented – where the respondent mother was not provided with any notice of the proposed amendments prior to the hearing – whether leave should be granted to amend the grounds of appeal – where the respondent mother is prejudiced by the late application – application refused.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Rules 2004 (Cth)

A v J (1995) FLC 92-619
Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Housing Commission of New South Wales v Tatmar Pastoral Co. Pty Ltd & Anor [1983] 3 NSWLR 378
Jones v National Coal Board [1957] 2 QB 55
Kioa v West (1985) 159 CLR 550
National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1
Russell v Duke of Norfolk [1949] 1 All ER 109
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1

APPELLANT:

Mr Yorston

RESPONDENT:

Ms Yorston

FILE NUMBER:

BRC

9556

2009

APPEAL NUMBER:

104

2011

DATE DELIVERED:

27 March 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace, Murphy JJ

HEARING DATE:

5 November 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 October 2011

LOWER COURT MNC:

[2011] FMCAfam 1165

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Smith

SOLICITOR FOR THE APPELLANT:

Simonidis Steel Lawyers

THE RESPONDENT:

In person

Orders

The appeal be allowed.
Orders 1 to 55 inclusive of the orders made by Howard FM on 8 December 2011 (as amended on 14 February 2012) be set aside.
The parenting proceedings be remitted to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Howard FM.
The Court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: YORSTON & YORSTON [2013] FamCAFC 49
Case: [2013] FamCAFC 49
Decision Date: 27 March 2013

CaseChat Overview and Summary

The appeal before the court involved a dispute between the father and mother of two children, regarding their living arrangements and time spent with each parent. The Federal Magistrate had delivered reasons for their decision ex tempore and subsequently sought orders from both parties to reflect those reasons. However, the orders forwarded by the mother formed the majority of the final orders, and the father alleged a denial of procedural fairness due to the orders not reflecting the reasons provided. The father also sought to amend the grounds of appeal during the hearing, but the mother was not provided with any notice of the proposed amendments prior to the hearing. The mother was self-represented and argued that the late application prejudiced her.

The court was required to decide whether the father was denied procedural fairness due to the orders not reflecting the reasons, and whether leave should be granted to amend the grounds of appeal. The court found that the orders made did not reflect the reasons, and as such, the father was denied procedural fairness. Additionally, the court refused the application to amend the grounds of appeal as the mother was prejudiced by the late application.

The appeal was allowed, and the orders made by the Federal Magistrate were set aside. The parenting proceedings were remitted to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Howard FM. The court granted the father a costs certificate and each party a costs certificate in respect of any costs incurred in relation to the new trial. The decision highlights the importance of ensuring procedural fairness in family law matters and the need for proper notice and consideration of amendments to the grounds of appeal.

Orders

Orders of the court

The appeal be allowed.

Orders 1 to 55 inclusive of the orders made by Howard FM on 8 December 2011 (as amended on 14 February 2012) be set aside.

The parenting proceedings be remitted to the Federal Magistrates Court for rehearing before a Federal Magistrate other than Howard FM.

The Court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.

The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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