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A confused judge apparently has an out

In Sikorski & Sikorski(2008) FLC 93-381, the husband appealed against orders for property settlement, and sought leave to adduce further evidence. The court of appeal overturned an appeal to fix the mess.

Court refuses retrial where parties led court into error

27 November 2008

In Sikorski & Sikorski(2008) FLC 93-381, the husband appealed against orders for property settlement, and sought leave to adduce further evidence. Among a number of complaints, the husband asserted that the trial judge erred by making an error in finding that both parties received $170,000 from proceeds of sale of a property and that the wife used her share of the proceeds to discharge a mortgage and erred with respect to the amount of that mortgage. The Full Court of the Family Court of Australia considered that there was no merit in the majority of the grounds of the appeal but there was an error in a finding of fact. Their Honours concluded that the trial judge was led into error by the way in which the parties conducted their respective cases, namely the wife's evidence, the late production by the husband of relevant documents and the husband's confusing evidence generally, and the submissions of both Counsel. The Full Court viewed that given the most confusing manner in which the case was presented at trial and on hearing of the appeal, significant further expense and delay would be occasioned if the matter was remitted. Court resources would be used to correct an error the parties themselves created. The appeal was dismissed and the husband was ordered to pay one half of the wife's costs.

See the Full Court judgement at: http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/judgments/newjudgments/Full+Court+(Appeals)+Judgments/FCOA_judge_fcjudgements_2008_FamCAFC_145

This case involved a self represented applicant and a legal practicioner. It brings into question what a judge can determine when both parties are less than truthful. The role of the court also is an issue.

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
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Executive Secretary - Shared Parenting Council of Australia
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verdad said
This case involved a self represented applicant and a legal practitioner. It brings into question what a judge can determine when both parties are less than truthful. The role of the court also is an issue.
The case looked to me like the SRL was not prepared as clearly there was much additional evidence that was to be entered into the appeal..The Judge was clearly confused with the evidence presented and the manner it was presented.
The Full Court of the Family Court of Australia considered that there was no merit in the majority of the grounds of the appeal but there was an error in a finding of fact. Their Honours concluded that the trial judge was led into error by the way in which the parties conducted their respective cases, namely the wife's evidence, the late production by the husband of relevant documents and the husband's confusing evidence generally, and the submissions of both Counsel.
Are you suggesting there is a miscarriage of justice in this case? Surely the fundamental premise that confronted the judge here is that a decision can only be made on the evidence as it is presented..and if further evidence comes to light because you don't get the decision you expected and present to the appeal court then it is a big ask to correct errors of fact at appeal and not errors in law.  We see this time and time again in SSAT matters where the COA review officer is not privy to material that gets up to SSAT.

You say that "The Full Court viewed that given the most confusing manner in which the case was presented at trial and on hearing of the appeal, significant further expense and delay would be occasioned if the matter was remitted. Court resources would be used to correct an error the parties themselves created." and that because the parties created the issues that there was no merit in re hearing the matetr.

What do you suggest should have happened here? What issues do you refer to in relation to the 'role of the Court' ?

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
 
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