Chard and Ye - [2018] FamCAFC 117

FAMILY COURT OF AUSTRALIA

CHARD & YE

[2018] FamCAFC 117

FAMILY LAW – APPEAL – PARENTING – Appeal against interlocutory orders and directions – Where there is doubt as to whether the orders and directions are decrees against which an appeal can be taken – Where, in any event, leave to appeal is required – Leave to appeal refused – Appellant to pay the costs of the respondent in a fixed sum.

Family Law Act 1975 (Cth) ss 60CC, 67ZBB, 69ZW, 94AAA(1A), 94AAA(3), 94A, 117(4)(a)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) Sch 3

Daines & Daines (2014) FLC 93-585; [2014] FamCAFC 61
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Hart & Sellwood (2016) FLC 93-753; [2016] FamCAFC 254
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

APPELLANT:

Mr Chard

RESPONDENT:

Ms Ye

INDEPENDENT CHILDREN’S LAWYER:

Strong Law

FILE NUMBER:

CAC

1638

2016

APPEAL NUMBER:

2018

DATE DELIVERED:

28 June 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

28 June 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDERS MADE:

1 February 2018

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Curtis

SOLICITOR FOR THE RESPONDENT:

Legal Aid ACT

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Wallis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Strong Law

Orders

Leave is granted to the applicant to rely on the reasons for judgment of Judge Hughes of 4 November 2016.
The Application in an Appeal filed on 18 June 2018 is otherwise dismissed.
Leave is granted to the applicant to make an oral application for leave to appeal.
The application for leave to appeal is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $1,179.80.

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 Chard & Ye 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 SYDNEY

Appeal Number: EA 34 of 2018
File Number: CAC 1638 of 2016

Mr Chard

Appellant

And

Ms Ye

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

Mr Chard (“the father”) seeks to appeal against orders made by Judge Hughes on 1 February 2018 in parenting proceedings between him and Ms Ye (“the mother”). The interests of their daughter (“the child”), who was born in…

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 Chard and Ye

Details

AGLC: Chard and Ye [2018] FamCAFC 117
Case: [2018] FamCAFC 117
Decision Date: 28 June 2018

CaseChat Overview and Summary

The parties involved in the matter were Chard, the applicant, and Ye, the respondent. The dispute centred on an application for leave to appeal a decision rendered by Judge Hughes on 4 November 2016. The matter was brought before the court on 18 June 2018, with Chard seeking to appeal the earlier judgment. The court was required to decide whether Chard should be granted leave to appeal and, if so, under what conditions.

The legal issues before the court were multifaceted. Primarily, the court had to consider whether there were exceptional circumstances justifying an appeal from the judgment of Judge Hughes. Additionally, the court needed to determine whether the application itself was an abuse of process. The court's analysis included an examination of the reasons provided by Chard for seeking leave to appeal and the merits of the underlying decision.

The court's reasoning led to the conclusion that while Chard was granted leave to rely on the reasons for judgment of Judge Hughes, the application for leave to appeal was dismissed. The court found that the application in an appeal was otherwise dismissed, and while leave was granted for an oral application for leave to appeal, this specific application was also dismissed. The court further ordered that Chard pay the respondent’s costs, which were fixed at $1,179.80. The form of the order was subject to the entry of the order in the court’s records.

Orders

Orders of the court

Leave is granted to the applicant to rely on the reasons for judgment of Judge Hughes of 4 November 2016.

The Application in an Appeal filed on 18 June 2018 is otherwise dismissed.

Leave is granted to the applicant to make an oral application for leave to appeal.

The application for leave to appeal is dismissed.

The applicant pay the respondent’s costs fixed in the sum of $1,179.80.

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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