Bale v Jenkins - [2007] FamCA 809

FAMILY COURT OF AUSTRALIA

BALE & JENKINS [2007] FamCA 809

FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – CHILDREN – RELOCATION – Whether the mother and child be allowed to relocate to China – Best interests of the child – Unwillingness of mother to facilitate and encourage close and continuing relationship between the father and the child – Self-represented parties – Appeal dismissed – Each party to bear their own costs.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application dismissed.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Human Rights and Equal Opportunity Commission Act 1986

A v A (2000) FLC 93-035 at 108
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) FLC 92-828
H v L (2000) FLC 93-062
House v The King (1936) 55 CLR 499
U v U (2002) FLC ¶93-112

APPELLANT: MS BALE

RESPONDENT: MR JENKINS

FILE NUMBER: MLM 8498 of 2004

APPEAL NUMBER: NA 73 of 2006

DATE DELIVERED:
10 August 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Finn, Warnick & May JJ

HEARING DATE: 18 May 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 25 August 2006

LOWER COURT MNC: [2006] FMCAfam 460
REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

SOLICITOR FOR THE RESPONDENT: Respondent appeared in person
Orders
(1)That the application to adduce further evidence filed 30 April 2007 be dismissed.
(2)That the appeal be dismissed.
(3)That each party pay their own costs of and incidental to the appeal.

It is noted this judgment for all reporting and publications purposes be referred to as BALE AND JENKINS.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 73 of 2006
File Number: MLM 8498 of 2004

MS BALE
Appellant
And

MR JENKINS
Respondent
REASONS FOR JUDGMENT
Finn J:
1.I agree with Warnick and May JJ that this appeal should be dismissed and that there should be no order as to costs in relation to the appeal. I do so broadly for the reasons given by their Honours.
2.As is clear from their Honours’ judgment, the appeal was largely directed to Morcombe FM’s refusal to allow the mother and child to relocate for a period to China. The opportunity for that relocation no longer exists, and thus the appeal could well be said to be misconceived.
3.It is, however, important to point out that while the orders which are the subject of the appeal were made on 25 August 2006 and therefore under the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, the parties being self-represented at the hearing of the appeal, were unable to put argument to this court on any matters of principle. Accordingly this appeal was not a suitable vehicle for any significant statement of principle from this court.

Warnick and May JJ:
4.On 25 August 2006 Morcombe FM dismissed an application by the mother to relocate with the child to Beijing, China. The mother wanted…

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 Bale v Jenkins

Details

AGLC: Bale v Jenkins [2007] FamCA 809
Case: [2007] FamCA 809
Decision Date: 10 August 2007

CaseChat Overview and Summary

The appeal concerned a dispute between a mother and father regarding the relocation of their child to China. The mother sought to relocate with the child, while the father opposed this move. The Federal Magistrates Court had previously made orders concerning the child, and the mother appealed these orders to the Full Court of the Family Court of Australia.

The Full Court was required to determine whether the Federal Magistrate erred in their decision regarding the relocation of the child to China. Specifically, the court had to consider whether the best interests of the child were adequately addressed, particularly in light of the mother's alleged unwillingness to facilitate and encourage a close and continuing relationship between the child and the father. The court also considered an application by the mother to adduce further evidence on appeal.

The Full Court dismissed the mother's application to adduce further evidence, finding it was not in the interests of justice to do so. In dismissing the appeal, the court found no error in the Federal Magistrate's decision. The reasoning implicitly affirmed the magistrate's assessment of the child's best interests and the mother's conduct in relation to the father's relationship with the child.

Consequently, the appeal was dismissed, and each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

(1) That the application to adduce further evidence filed 30 April 2007 be dismissed.

(2) That the appeal be dismissed.

(3) That each party pay their own costs of and incidental to the appeal.

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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