BLANCHARD & BEAN

Case [2018] FamCAFC 219

FAMILY COURT OF AUSTRALIA

BLANCHARD & BEAN [2018] FamCAFC 219
FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – where the mother failed to file a draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – where the mother’s appeal was deemed abandoned by operation of r 22.13(3) – where the mother’s proposed appeal constitutes only challenges as to weight – where the mother’s appeal was so devoid of merit that it would be futile to reinstate it – where the mother sufficiently explained her delay in filing her application – where the father, and indeed the child, would incur prejudice by the reinstatement of an appeal devoid of merit – application dismissed – no order as to costs.

Family Law Act 1975 (Cth) ss 60CC(3), 65D(2), 117(2)
Family Law Rules 2004 (Cth) rr 22.13(2), 22.13(3), 22.44
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Rand & Rand [2009] FamCAFC 88
APPLICANT: Ms Blanchard
RESPONDENT: Mr Bean
FILE NUMBER: DGC 2078 of 2014
APPEAL NUMBER: SOA 92 of 2017
DATE DELIVERED: 16 November 2018
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Kent J
HEARING DATE: 12 and 15 November 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 17 November 2017
LOWER COURT MNC: [2017] FCCA 2632

REPRESENTATION

THE APPLICANT: In person
COUNSEL FOR THE RESPONDENT: Mr Korke
SOLICITOR FOR THE RESPONDENT: Victoria Legal Aid

Orders

  1. The applicant mother’s Application in an Appeal filed 10 October 2018 be dismissed.

  2. There be no order as to costs.

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 Blanchard & Bean 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 92 of 2017
File Number: DGC 2078 of 2014

MS BLANCHARD

Applicant

And

MR BEAN

Respondent

REASONS FOR JUDGMENT

  1. By Application in an Appeal filed on 10 October 2018, Ms Blanchard (“the mother”) seeks reinstatement of her appeal from parenting orders[1] made by Judge Burchardt in the Federal Circuit Court of Australia on 17 November 2017, following a trial of parenting proceedings between the mother, Mr Bean (“the father”) and the Independent Children’s Lawyer (“ICL”) appointed to…

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BLANCHARD & BEAN [2018] FamCAFC 219
Case
[2018] FamCAFC 219
Decision Date

CaseChat Overview and Summary

Blanchard & Bean was a case heard in the Family Court of Australia. The applicant, the mother, sought to appeal against the decision of the primary judge, which had granted sole parental responsibility to the father. The dispute centred around the welfare and best interests of the child, with the mother arguing that the primary judge had erred in his assessment of the evidence.

The primary legal issue before the court was whether the primary judge had erred in law in making his determinations regarding the welfare and best interests of the child, and whether the appeal should be dismissed. The court had to consider the evidence presented and the primary judge’s assessment of that evidence, as well as the relevant legal principles and precedents.

The court found that the primary judge had not erred in law in making his determinations regarding the welfare and best interests of the child. The court held that the primary judge had considered all relevant evidence and had made findings that were supported by that evidence. The court further held that the appeal should be dismissed, as there was no basis for interfering with the primary judge’s determinations. The court did not make any order as to costs.

Orders

Orders of the court

1.

The applicant mother’s Application in an Appeal filed 10 October 2018 be dismissed.

2.

There be no order as to costs.

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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