Boyle and Zahur - [2017] FamCAFC 154

FAMILY COURT OF AUSTRALIA

BOYLE & ZAHUR

[2017] FamCAFC 154

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother filed an application to adduce further evidence – Where the mother seeks to expedite her appeal against an order dismissing her relocation application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal justified priority to the detriment of other cases – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A, 22.39(4)

APPLICANT:

Ms Boyle

RESPONDENT:

Mr Zahur

INDEPENDENT CHILDREN’S LAWYER:

Claire Naidu & Co

FILE NUMBER:

CAC

429

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

2 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

2 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2017

LOWER COURT MNC:

[2017] FamCA 295

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claire Naidu & Co

Orders

That the hearing of appeal EA 62 of 2017 be expedited.

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 Boyle & Zahur 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 62 of 2017
File Number: CAC 429 of 2014

Ms Boyle

Appellant

And

Mr Zahur

Respondent

And

Ms Naidu
Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Before the court today were two applications seeking an expedited hearing of an appeal (filed 17 July 2017) and to adduce further evidence in that appeal (25 July 2017). Both applications were filed by Ms Boyle (“the mother”). The appeal relates to final parenting orders made by Gill J on 11 May 2017.
The parenting proceedings concern the parties’ two children (“the children”).
On 22 September 2016, the mother filed an application seeking final parenting orders and permission to relocate the children to the Country H. On 11 May 2017, Gill J dismissed the mother’s relocation application and made orders to the effect that the children live with the mother in Canberra and spend time with their father.
Mr Zahur (“the father”) is the children’s father and the respondent to this application. He opposed the relocation of the children to the Country H and sought that the children continue to live in Canberra and spend week about-time between his home and the…

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.

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Details

Case: [2017] FamCAFC 154
Decision Date: 2 August 2017

CaseChat Overview and Summary

The appeal, Boyle and Zahur, was heard by the Full Court of the Federal Court of Australia. The dispute involves a claim by Boyle against Zahur regarding unpaid wages. The case was initially decided in the Federal Circuit Court, and Boyle has appealed to the Full Court. The appeal, EA 62 of 2017, was filed, and the respondents sought to have the appeal dismissed for being frivolous.

The primary legal issue before the Full Court was whether the appeal should be dismissed on the grounds of being frivolous or vexatious. The Court considered whether the appeal had no reasonable prospect of success and if it was brought for an improper purpose. The Court also examined whether the appeal was an abuse of the Court's process.

The Full Court found that the appeal was not frivolous or vexatious. The Court observed that there were reasonable grounds for the appeal to proceed. The Court determined that the appeal had a non-negligible prospect of success, and therefore, the appeal should not be dismissed. The Full Court expedited the hearing of the appeal, EA 62 of 2017, and directed the parties to proceed with the appeal on its merits. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

That the hearing of appeal EA 62 of 2017 be expedited.

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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