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Three recently reported family law cases are summarised

Case stated scope of remitted hearing , Subpoena to National Transcription Service considered, Appeal vs s 79A which application to hear first?,

Three recently reported family law cases are summarised below.
 
Case stated  scope of remitted hearing
 
In Harnett & Sampson (2009) FLC 93-391, the Full Court considered two questions concerning the scope of a remitted hearing.
 
The Full Court had previously remitted the matter to the original trial judge for further hearing on limited issues. The original trial judge (XJ) then disqualified herself from further hearing the matter.
 
The Full Court considered two questions as part of the case stated.
 
Firstly, given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge re-hearing the case, as directed by the Full Court, by adopting the findings of XJ in her judgments, taking updating evidence from the parties, then considering the areas referred to by the Full Court in their reasons and then determining the parenting matter?
 
Secondly, given the circumstances which have unfolded since the orders of the Full Court, would an error of law arise in the event of a trial judge hearing the whole parenting dispute afresh?
 
On the first issue, in the absence of consent, the majority held that an error of law would arise. On the second issue, an error of law would not arise in the event that the trial judge heard the whole parenting dispute afresh.
 
Subpoena to National Transcription Service considered
 
In this appeal, the Full Court considered whether to grant leave for the appellant wife to subpoena the National Transcription Service (NTS) for an original version of the audio recording of the hearing at first instance and any rules handbooks normally in place to ensure the veracity of the audio records. The wife also sought to subpoena an officer of the NTS for any records which are kept of mistakes and inaccuracies in the transcription process.
 
One of the grounds of the appeal by the wife was that the comments of the trial judge indicated bias on his part.
The court was not satisfied that there were any concerns raised on the material as to its integrity which ought to cause the court to take the path sought by the wife but allowed the subpoena to NTS.
 
See Batey-Elton & Elton (No 2) (2008) FLC 93-390
 
Appeal vs s 79A  which application to hear first?
 
In Arthurman & Arthurman (2008) FLC 93-389, there was an appeal against property orders and costs orders filed by the wife.
 
Subsequent to filing the appeal, the wife discovered that the husband failed to disclose an interest he had in a property.
The wife then filed a further application seeking that all orders made by the trial judge be set aside under s 79A(1)(a) of the Family Law Act 1975.
 
The wife submitted that her appeals should be adjourned until the hearing of her application under s 79A was complete. The husband submitted that the appeals should be heard and determined before the s 79A proceedings.
 
Their Honours concluded that the most expeditious and cost effective manner of determining the competing applications is that the wifes appeals should be adjourned pending the determination of her application under s 79A.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 

Hartnett & Sampson

The Hartnett & Sampson case is an interesting one.
It is due to be heard in Sydney Registry on 1st May 2009.
The mother is now self-representing. Thousands have been vapourised on legals.
I have sat in on some of the hearings in this matter.
The father is a publicly known person who has not sold the property as denoted in court orders. His relationship with his generous friends is very intriguing.


As can be seen by the list below it is possible to get a grasp of the material and as such will allow anyone wishing to get a sense of how a court functions to be with it.
   Hartnett & Sampson [2007] FamCA 202 (14 February 2007) http://www.austlii.edu.au/au/cases/cth/FamCA/2007/202.html
Hartnett & Sampson [2008] FamCA 75 (7 February 2008) http://www.austlii.edu.au/au/cases/cth/FamCA/2008/75.html
Hartnett & Sampson [2009] FamCA 106 (19 February 2009) http://www.austlii.edu.au/au/cases/cth/FamCA/2009/106.html
Hartnett & Sampson (No. 2) [2007] FamCA 241 (21 March 2007) http://www.austlii.edu.au/au/cases/cth/FamCA/2007/241.html
Hartnett & Sampson (No. 2) [2008] FamCA 404 (23 January 2008) http://www.austlii.edu.au/au/cases/cth/FamCA/2008/404.html
Hartnett & Sampson (No. 3) [2008] FamCA 473 (18 June 2008) http://www.austlii.edu.au/au/cases/cth/FamCA/2008/473.html
Hartnett & Sampson (No. 5) [2007] FamCA 411 (4 May 2007) http://www.austlii.edu.au/au/cases/cth/FamCA/2007/411.html
Hartnett & Sampson (No. 7) [2007] FamCA 779 (7 June 2007) http://www.austlii.edu.au/au/cases/cth/FamCA/2007/779.html
Hartnett & Sampson (No. 8) [2007] FamCA 1076 (30 August 2007) http://www.austlii.edu.au/au/cases/cth/FamCA/2007/1076.html


There will be cross-examinations even! Dads_R_Tops was looking for such a case. It is to run for six days. It is a priceless opportunity for those wanting to follow a matter. Those who read all the case material would benefit even more.

This as I understand it will be limited to custody matters. Although the remnants of the property proceedings are intertwined. It is rare to find as well documented case and to be aware as to when it will be heard. Be warned that court dates are subject to movement.

The judge and the actual court would be known on 31 March 2009. Moore J has disqualified herself so that only marginally reduces the field. A guess would be Watts J. If so that would be court 6B.

SAMPSON and HARTNETT(NO 10) (2007) FLC 93-350

Family Court citation: [2007] FamCA 1365

In the Full Court of the Family Court of Australia at Sydney

Judgment delivered 22 November 2007

Family law Appeal Parenting Relocation Power of court to directly or effectively order a parent to relocate Effect of Constitution on parenting orders requiring or preventing interstate relocation Family Law Act 1975 (Cth), s 65DAA, s 114(3) The Constitution, s 92.

This was an appeal by the mother against a parenting order which provided that the parents have equal shared parental responsibility for the children, that the children's residence be established in Sydney and that, following relocation of the children's residence to Sydney, the time the children spend with the father be gradually increased to each alternate week.

Following separation, the mother moved from Sydney to Geelong with one child, the second child being born a few months thereafter. At the trial the father indicated he would live in Sydney and the mother indicated she would live in Geelong.

On appeal, the mother submitted that the trial judge failed to have regard to and articulate the matters referred to in s 65DAA of the Act. The mother proposed that the children continue to live with her in Geelong and that they spend time with the father.

The father submitted in the event the appeal was allowed that the matter be remitted for further consideration by the trial judge.

Held: appeal allowed.

HARTNETT& SAMPSON (SCOPE OF REHEARING) (2009) FLC 93-391Family Court citation: [2009] FamCAFC 1

In the Full Court of the Family Court of Australia at Sydney

Judgment delivered 9 January 2009

Family law Case stated Practice and procedure.

This was a case stated to the Full Court to determine the remission for rehearing of the matter following an appeal. on appeal, the Full Court set aside parenting orders and remitted the matter to the trial judge for rehearing.

Upon the matter coming before the trial judge, an application was made for the trial judge to disqualify herself. The trial judge acceded to that application.

A dispute then arose as to how the hearing should be conducted if it were to proceed before another judge.

The mother submitted that there should be a fresh hearing untainted by the findings of the original trial judge. The father submitted that the exercise which should be undertaken by the trial judge is to reconsider, in the light of the findings of the original trial judge and any updating evidence, the matters referred to in the judgment of the Full Court.

The questions posed to the Full Court in the case stated were:

1. Given the circumstances which have unfolded since the orders of the Full Court made on 22 November 2007, would an error of law arise in the event of a trial judge re-hearing the case, as directed by the Full Court, by adopting the findings of XJ in her judgments, taking updating evidence from the parties, then considering the areas referred to by the Full Court in their reasons and then determining the parenting matter?

2. Given the circumstances which have unfolded since the orders of the Full Court, would an error of law arise in the event of a trial judge hearing the whole parenting dispute afresh?

Held: Per Bryant CJ and Cronin J

1. Yes, unless the parties consent.
A trial judge must not be constrained as to the determination of a controversy other than that it must be determined according to law. For a Full Court to direct that a new trial judge accept findings of another judge and then apply the law would be to inappropriately shackle that judge.

2. No.
The orders of the Full Court did not prescribe the manner in which Moore J would hear and determine the case remitted to her. That being so, it follows that equally there can be no permissible constraint upon the manner in which a re-hearing is conducted by any judge other than Moore J who is to now hear the matter, unless that constraint is with the consent of the parties.

Per Warnick J
1. Yes, unless the parties consented to the approach adumbrated in the question.

2. No.

Last edit: by verdad


What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha

The question of Transcripts and their accuracy

The first thing to understand is that Transcripts are prepared by mortal human beings and as such there is always the potential for minor errors. I know, I was looking at a transcript last week which in fact contained minor errors. Questions attibuted to the wrong Persons, typically the transcription service failing to recongnise that the Judicial Officer had asked a question during a line of questioning conducted by one of the Parties or their leagal representitive.

These errors had been identified because a CD of voice recording og the Trial had been obtained. As I understand it, the single fee of $18 applies to a CD and they can up to 8 days of Court time on one CD.

As a  further observation, once the error was brough to the attention of the Transcription Service, they corrected the transcript at no extra charge.

For me - Shared Parenting is a Reality - Maybe it can be for you too!
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