Annual report [1997-98] - Family Court of Australia

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The Family Court of Australia – annual report 1997-98 Table 3.5: Full Court applications for leave to appeal 1997-98 Registry Filed Allowed Dismissed Abandoned Withdrawn Outstanding at 30/6/98* Eastern Sydney 9 4 5 0 4 3 Parramatta 2 1 0 0 1 0 Newcastle 3 0 0 0 3 0 Canberra 4 0 0 0 1 4 Transfers 0 0 0 0 0 0 Eastern 18 5 5 0 9 7 Southern Melbourne 13 0 1 0 2 10 Dandenong 0 0 0 0 0 0 Hobart 0 0 0 0 1 0 Launceston 0 0 0 0 0 0 Adelaide 6 1 0 0 5 4 Transfers 2 0 0 0 0 0 Southern 21 1 1 0 8 14 Northern Brisbane 8 2 2 1 0 8 Townsville 0 0 0 0 0 0 Darwin 0 0 0 0 0 0 Transfers 0 0 0 0 0 0 Northern 8 2 2 1 0 8 FCWA 7 2 2 0 3 2 Total 54 10 10 1 20 31 *Outstanding as at 30 June 1998 includes cases not heard and judgments reserved Table 3.6: Full Court applications forleave to appeal relating to child support 1997-98 Number of applications for leave to appeal Child support 19 Other 35 Number Table 3.7: Other types of applications 1997-98 Other types of applications Number Cases stated, 42AApplications not related to any appeal etc. 6 Table 3.8: Collection of filing fee 1997-98 Collection of filing fee Number Percentage Fee collected 159 52.5 Legal Aid 8 2.6 Fee waived or not payable 136 44.9 43
The Family Court of Australia – annual report 1997-98 Significant judgments Following are some of the more significant decisions of the High Court, the Family Court and the Adminsitrative Appeals Tribunal in relation to family law during 1997-98. Fresh evidence In VJ v CJ(1997) FLC 92 -772, the Full Court allowed an appeal by the wife against orders changing the residence of the two younger children of the marriage (aged six and eight) from the wife to the husband. The court granted the wife’s application to introduce fresh evidence and remitted the matter for rehearing. The parties’adopted teenage daughter had committed suicide during the marriage and the relationship between the wife and the parties’other adopted teenage daughter had subsequently broken down. The trial judge found the wife to be suffering from an anxiety state and unable to cope with teenage children. The Full Court allowed the wife to introduce evidence from a grief counsellor as to the manner in which the wife had coped appropriately with her daughter’s suicide. While the evidence the wife sought to introduce upon appeal might have been available at trial, the Full Court found that, if accepted, the evidence may lead to different conclusions being reached about the wife’s behaviour subsequent to her daughter’s death and better put into perspective the wife’s long-term parenting abilities. At issue was whether the rules relating to further evidence being introduced on appeal were subservient to the “paramountcy of the best interests of the child” principle which governs cases concerning children’s welfare. The Full Court concluded that the best interests of the children may not be served by allowing the residence order to stand and that this was a rare and exceptional case where the discretion to admit further evidence should be exercised. In March 1998, the husband obtained special leave to appeal to the High Court. Judgment has been reserved. Costs and s117C offers In Pennisi(1997) FLC 92-774, the Full Court allowed an appeal by the wife against orders requiring her to pay the husband’s costs of the trial. The Full Court held that an appellate court has a duty to reconsider a trial order when it disturbs a finding of fact material to the making of such an order. In this case, the trial judge had made the order for costs after having regard to the quantum of the difference between the amount ordered in property proceedings and the greater value of the husband’s s117C offers. The wife successfully appealed some aspects of the property orders, as a result of which her award was increased. The Full Court found its task was to determine the costs issue on the evidence before the trial judge at the time save for the finding of fact disturbed. The Full Court also found that the plain words of s117(2A)(f) do not limit a Court’s attention to offers which are greater than the amount awarded and that the closer that the offer is to the award when the offer is under the amount awarded by the Court, the more weight that should be given to this factor in considering the question of costs. Children’s happiness in a finely balanced residence dispute In K v Z (1997) FLC 92-783, the parties, who both resided in Hobart, had shared the care of the children for three years following separation. The wife subsequently moved to 44
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Annual report [1997-98] - Family Court of Australia

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