Best & Best (No. 2) - [2013] FamCAFC 6

FAMILY COURT OF AUSTRALIA

BEST & BEST (NO. 2)

[2013] FamCAFC 6

FAMILY LAW – APPEAL – CONTRAVENTION – Where the notice of appeal contained 15 grounds – Where the majority of the appellant father’s complaints and submissions were based on the father’s own misconceptions – Where the father failed to refer to evidence which supported his assertions of error – Where no error in the trial judge’s application of legal principles or her Honour’s exercise of the discretion was established – appeal dismissed.

FAMILY LAW – APPEAL – APPLICATIONS TO ADDUCE FURTHER EVIDENCE – Where the application filed subsequent to the appeal hearing was clearly in response to, and an attempt to cure, matters which emerged during the course of the appeal hearing as obstacles to the father’s successful prosecution of his appeal against substantive parenting orders in EA 23/2012 – Where the father’s further evidence would not demonstrate that the trial judge’s decision was erroneous – Where part of the evidence in fact confirmed the correctness of a finding about which complaint was made in the appeal – Applications dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was heard together with an appeal against substantive parenting orders which formed the subject of the contravention proceedings – Where the reasons for judgment in both appeals were delivered together – Where the appropriate order is to reserve costs and grant the respondent mother and Independent Children’s Lawyer leave to file any application for costs together with submissions within 14 days.

Family Law Act 1975 (Cth) ss 65N(2), 70NAA, 70NBA, 93A

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Mr Best

RESPONDENT:

Ms Best

INDEPENDENT CHILDREN’S LAWYER:

Michael Davies

FILE NUMBER:

WOC 91 of 2010

APPEAL NUMBER:

EA 133 of 2012

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Ainslie-Wallace JJ

HEARING DATE:

19 November 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 September 2012

LOWER COURT MNC:

[2012] FamCA 828

REPRESENTATION

THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

DGB Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Maguire & McInerney Lawyers

Orders

The appeal be dismissed.
The two Applications in an Appeal to adduce further evidence filed by the appellant on 23 October 2012 and 21 November 2012 be dismissed.
The respondent’s and the Independent Children’s Lawyer’s costs of the appeal be reserved.
The respondent and the Independent Children’s Lawyer be at liberty to file and serve any application for costs together with written submissions by

15 February 2013.
The appellant file and serve any written submissions in response by

15 March 2013.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT…

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 Best & Best (No. 2)

Details

AGLC: Best & Best (No. 2) [2013] FamCAFC 6
Case: [2013] FamCAFC 6
Decision Date

CaseChat Overview and Summary

This appeal involved the father, Mr Best, appealing against orders made by Rees J dismissing his applications filed pursuant to s 70NBA of the Family Law Act 1975 (Cth) alleging contravention of certain parenting orders by the mother, Ms Best. The father sought to set aside the Judge’s order and have his application remitted for re-hearing by another judge. The mother resisted the appeal and sought to maintain the trial Judge’s orders. The Independent Children’s Lawyer appeared to resist the father’s appeal insofar as it related to a count alleging breaches by the Independent Children’s Lawyer. The appeal involved 15 grounds. The Full Court found that the majority of the father’s complaints and submissions were based on his own misconceptions and he failed to refer to evidence which supported his assertions of error. The Court found no error in the trial Judge’s application of legal principles or her Honour’s exercise of the discretion. The appeal was dismissed. The Court also dismissed the father’s applications to adduce further evidence. The Court found that the father’s further evidence would not demonstrate that the trial Judge’s decision was erroneous. The Court found the appropriate order in relation to costs was to reserve costs and grant the mother and Independent Children’s Lawyer leave to file any application for costs together with submissions within 14 days.

Orders