Attaway and Balloch (No 2) - [2019] FamCAFC 243

FAMILY COURT OF AUSTRALIA

ATTAWAY & BALLOCH (NO. 2)

[2019] FamCAFC 243

FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders – Where the mother withheld the child – Where the mother sought to argue matters that were not raised by the grounds of appeal or were in conflict with her case before the primary judge – The appellant is bound by the conduct of the case – Findings of fact – Assessment of risk – Discretionary decision – Appeal dismissed – Costs order made in favour of the father.

Family Law Act 1975 (Cth) ss 60CC(3)(d), 93A(2) and 117

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

APPELLANT:

Ms Attaway

RESPONDENT:

Mr Balloch

FILE NUMBER:

NCC

1081

2019

APPEAL NUMBER:

2019

DATE DELIVERED:

10 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Austin JJ

HEARING DATE:

10 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2019

LOWER COURT MNC:

[2019] FCCA 2626

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Derham Houston Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Otrebski

SOLICITOR FOR THE RESPONDENT:

Mastronardi Legal Pty Ltd

Orders

The appellant mother have leave to adduce further evidence in the appeal in accordance with her Application in an Appeal dated 2 December 2019.
The appeal be dismissed.
The appellant mother pay the respondent father’s costs of and incidental to the appeal in the amount of $13,400 within twenty-eight (28) days.
The solicitors for the appellant mother file and serve an affidavit, within seven (7) days in the Appeals Registry, to which is attached emails serving the Application to Adduce Further Evidence and supporting affidavit dated 2 December 2019, including the email of 3 December 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Attaway & Balloch (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 94 of 2019
File Number: NCC 1081 of 2019

Ms Attaway

Appellant

And

Mr Balloch

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

By Notice of Appeal…

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.

Continue reading Attaway and Balloch (No 2)

Details

AGLC: Attaway and Balloch (No 2) [2019] FamCAFC 243
Case: [2019] FamCAFC 243
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the case of Attaway and Balloch, the appellant mother challenged a decision made by a Family Court of Australia judge regarding the care and custody of the parties’ child. The mother sought leave to adduce further evidence in her appeal and argued that the original decision should be overturned. The respondent father opposed the mother’s application, arguing that the new evidence was irrelevant and should not be considered.

The legal issues before the court included whether the mother should be granted leave to adduce further evidence in the appeal, and if the appeal should be dismissed. The court also considered whether the mother should be ordered to pay the father’s costs of the appeal.

The court found that the mother’s application for leave to adduce further evidence was not made within a reasonable time and that the new evidence was not relevant to the issues in the appeal. The court held that the mother had failed to establish that the original decision was wrong or that there were other grounds for setting it aside. The court dismissed the appeal and ordered the mother to pay the father’s costs of the appeal. The court also ordered the mother’s solicitors to file and serve an affidavit within seven days, attaching emails serving the Application to Adduce Further Evidence and supporting affidavit dated 2 December 2019, including the email of 3 December 2019.

Orders

Orders of the court

The appellant mother have leave to adduce further evidence in the appeal in accordance with her Application in an Appeal dated 2 December 2019.

The appeal be dismissed.

The appellant mother pay the respondent father’s costs of and incidental to the appeal in the amount of $13,400 within twenty-eight (28) days.

The solicitors for the appellant mother file and serve an affidavit, within seven (7) days in the Appeals Registry, to which is attached emails serving the Application to Adduce Further Evidence and supporting affidavit dated 2 December 2019, including the email of 3 December 2019.

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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