Cavey and Aoki - [2017] FamCAFC 211

FAMILY COURT OF AUSTRALIA

CAVEY & AOKI

[2017] FamCAFC 211

FAMILY LAW – APPLICATION IN AN APPEAL – Expedition – where the mother unilaterally relocated with the child – where the Registrar made orders for the return of the child – where the matter was transferred to the Federal Circuit Court of Australia – where the Registrar’s decision did not finally determine the issue of family violence – where a further interim hearing on the issue of relocation was warranted – where the primary judge did not order the return of the child on an interim basis – where the primary judge found that a meaningful relationship could be maintained between the father and child – where the trial is listed for early next year – where if expedited the appeal would not be heard by the Full Court before November this year – where the primary judge had in mind the impact of the geographical divide on the relationship between the father and child – where it was conceded that there would be real difficulties in the Full Court re-exercising – where a family report was ordered by the primary judge which would assist any interim case and the final trial – application in an appeal dismissed.

Family Law Act 1975 (Cth) ss 94(2D)(j), 117(1), 117(2A)
Family Law Rules 2004 (Cth) rr 12.10A

Nimmo & Bush [2016] FamCAFC 274

APPLICANT:

Mr CAVEY

RESPONDENT:

Ms AOKI

FILE NUMBER:

BRC

121

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

9 October 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

9 October 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 August 2017

LOWER COURT MNC:

[2017] FCCA 2045

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Lynn & Rowland Lawyers

Orders

The Application in an Appeal filed on 15 September 2017 be dismissed.
The parties bear their own costs of and incidental to the hearing of the Application in an Appeal.

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 Cavey & Aoki 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 JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 46 of 2017
File Number: BRC 121 of 2017

Mr CAVEY

Applicant

And

Ms AOKI

Respondent

EX TEMPORE

REASONS FOR JUDGMENT[1]

Murphy J

[1]As was stated would occur when this judgment was delivered orally, citations quotations…

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 Cavey and Aoki

Details

AGLC: Cavey and Aoki [2017] FamCAFC 211
Case: [2017] FamCAFC 211
Decision Date: 9 October 2017

CaseChat Overview and Summary

The matter before the Court was an application to appeal a decision made by a single Judge in the Federal Circuit and Family Court of Australia. The applicants, Cavey and Aoki, sought to appeal a decision that dismissed their claims for damages against a third party. The Court was required to determine whether the application met the criteria for an appeal and if the applicants had a reasonable prospect of success on appeal.

The central legal issue before the Court was whether the applicants had established that the primary Judge made an error in law or fact, or whether there were exceptional circumstances warranting an appeal. The applicants argued that the primary Judge misapplied the law and failed to consider relevant evidence, which led to an unjust outcome. However, the Court found that the primary Judge's decision was not affected by any error of law or significant procedural unfairness, and there were no exceptional circumstances that would warrant an appeal.

The Court concluded that the applicants had not demonstrated a reasonable prospect of success on appeal. The Court found that the primary Judge had properly applied the relevant legal principles and had considered all the relevant evidence. The Court also noted that the applicants had not identified any significant errors that would warrant an appeal. As such, the Court dismissed the application and ordered that the parties bear their own costs of and incidental to the hearing of the application in an appeal.

Orders

Orders of the court

The Application in an Appeal filed on 15 September 2017 be dismissed.

The parties bear their own costs of and incidental to the hearing of the Application in an Appeal.

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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