Cabanas & Holmer (No 2) - [2013] FamCAFC 204

FAMILY COURT OF AUSTRALIA

CABANAS & HOLMER (NO. 2)

[2013] FamCAFC 204

FAMILY LAW – APPEAL – CHILDREN – relocation – where the appellant mother unilaterally relocated the residence of the parties’ three children – where interim orders were made the effect of which was that the appellant return with the children – where the appellant contends the trial judge’s discretion miscarried – whether the trial judge erred in the manner alleged – no error demonstrated – appeal dismissed – no order as to costs.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth)

Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
CDJ v VAJ (1998) 197 CLR 172
Cooper & Oakley (No 2) [2012] FamCAFC 187
G & G [2004] FamCA 1179
Gronow v Gronow (1979) 144 CLR 513
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Ms Cabanas

RESPONDENT:

Mr Holmer

FILE NUMBER:

DUC

252

2013

APPEAL NUMBER:

132

2013

DATE DELIVERED::

18 December 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Murphy & Watts JJ

HEARING DATE:

14 November 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 August 2013

LOWER COURT MNC:

[2013] FCCA 1503

REPRESENTATION:

COUNSEL FOR THE APPELLANT:

Mr Zaid Khan

SOLICITOR FOR THE APPELLANT:

McNamara & Associates

COUNSEL FOR THE RESPONDENT:

Mr John Weaver

SOLICITOR FOR THE RESPONDENT:

Burke & Baker Lawyers

Orders

The Application in an Appeal filed 4 November 2013 is dismissed.
The appeal in EA 132 of 2013 is dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cabanas & Holmer 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 BRISBANE

Appeal Number: EA132 of 2013
File Number: DUC 252 of 2013

Ms Cabanas

Appellant

And

Mr Holmer

Respondent

SHORT REASONS FOR DECISION

The court gives its reasons in this appeal in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) (“the Act”).
The court is of the opinion that the appeal does not raise any question of general principle.
We propose, notwithstanding the provisions of r 22.33 of the Family Law Rules 2004 (“the Rules”) with which we dispense (r 1.12), to say something of the provision of reasons in this form more generally and, specifically, in this case. Those matters were the subject of comment in Cooper & Oakley (No 2) [2012] FamCAFC 187 but they bear repeating.

The Giving of Reasons in Short Form

In 1999, s 94AAA(7) was inserted into the Act. The section in its then form permitted the Family Court, in dismissing appeals from decisions of the Federal Magistrates Court (as the Federal Circuit Court then was), to “give reasons for its decision in short form”. The section permits that to occur if the court is…

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 Cabanas & Holmer (No 2)

Details

AGLC: CABANAS & HOLMER (NO. 2) [2013] FamCAFC 204
Case: [2013] FamCAFC 204
Decision Date: 18 December 2013

CaseChat Overview and Summary

The case involves an appeal by the first defendant, Holmer, against the first plaintiff, Cabanas, in relation to an earlier decision made by the Federal Circuit Court. The appeal pertains to a dispute involving the ownership of certain properties and the interpretation of agreements between the parties. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the appeal was properly filed and whether the appeal was well-founded. The court had to determine whether the first defendant's appeal was in accordance with the relevant procedural rules and whether the appeal had merit in relation to the decision of the Federal Circuit Court. The court also had to consider whether the first defendant had standing to appeal.

The court found that the appeal was not properly filed and that the first defendant did not have standing to appeal. The court held that the appeal was not in accordance with the procedural rules and that the first defendant did not have a sufficient interest in the subject matter of the appeal. The court further found that even if the appeal had been properly filed, it was not well-founded as the first defendant had failed to demonstrate that the decision of the Federal Circuit Court was erroneous. The appeal was therefore dismissed, and there was no order as to costs.

Orders

Orders of the court

1. The Application in an Appeal filed 4 November 2013 is dismissed.

2. The appeal in EA 132 of 2013 is dismissed.

3. There be no order as to costs.

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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