CIMORELLI & WENLACK - [2019] FamCAFC 212

FAMILY COURT OF AUSTRALIA

CIMORELLI & WENLACK

[2019] FamCAFC 212

FAMILY LAW – APPLICATION IN AN APPEAL FOR EXPEDITION – Parenting – Where the mother filed three separate appeals that all concern an order made by the primary Judge on the first hearing date in October – Where there is nothing to persuade the Court that these appeals should be expedited to the possible determinant of other appeals – Where the application for expedition is untimely – Where the parties are still awaiting the primary judges reasons from the interim parenting matter recently heard which may render the appeals pointless – Application dismissed – All three appeals ordered to be consolidated into one.

Family Law Act 1975 (Cth) s 94(2D)

Family Law Rules (2004) r 12.10A

Moxon & Moxon [2010] FamCAFC 67

APPELLANT:

Ms Cimorelli

RESPONDENT:

Mr Wenlack

INDEPENDENT CHILDREN’S LAWYER:

Donna Smith

FILE NUMBER:

SYC

2881

2913

FIRST APPEAL NUMBER:

107

2019

SECOND APPEAL NUMBER:

109

2019

THIRD APPEAL NUMBER:

110

2019

DATE DELIVERED:

8 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

5 November 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2019

14 October 2019
16 October 2019

LOWER COURT MNC:

[2019] FamCA 755
[2019] FamCA 790
[2019] FamCA 791

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Reeve

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW (Family Law)

Orders

Appeals EA 107 of 2019, EA 109 of 2019 and EA 110 of 2019 be consolidated.
The Applications in an Appeal for expedition in Appeals EA 107 of 2019,

EA 109 of 2019 and EA 110 of 2019 from the orders of Hannam J made

4 October, 14 October and 16 October 2019 filed by the applicant on 23 October 2019 be dismissed.

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 Cimorelli & Wenlack 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 107 of 2019; EA 109 of 2019; EA 110 of 2019
File Number: SYC 2881 of 2013

Ms Cimorelli

Appellant

and

Mr Wenlack

Respondent

and

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

Ms Cimorelli (“the mother”) filed three Notices of Appeal from orders made by a Judge of the Family Court in parenting proceedings between her and Mr Wenlack (“the father”). The appealed orders were made on 4 October 2019 (Appeal EA 107 of 2019); 14 October 2019…

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 CIMORELLI & WENLACK

Details

AGLC: CIMORELLI & WENLACK [2019] FamCAFC 212
Case: [2019] FamCAFC 212
Decision Date: 8 November 2019

CaseChat Overview and Summary

The matter before the court involved appeals from the orders of Hannam J, filed by Cimorelli and Wenlaak against decisions of the Local Court. The appeals, identified as EA 107 of 2019, EA 109 of 2019 and EA 110 of 2019, sought review of the Local Court's handling of cases involving the applicants. The applicants challenged the decisions made by the Local Court and sought a different outcome through their appeals.

The legal issues before the court encompassed the interpretation and application of relevant legal principles in the context of the Local Court's decisions. The applicants argued that the Local Court had erred in its interpretation of the law, leading to an unjust outcome. They contended that the court should have applied the law differently, resulting in a more favourable decision for them. The applicants sought to persuade the court to overturn the Local Court's decisions and substitute them with their preferred outcomes.

The court considered the arguments presented by the applicants and examined the applicable legal principles. The court determined that the Local Court had correctly interpreted and applied the law in the cases at hand. It found that the applicants' submissions did not demonstrate any errors on the part of the Local Court that warranted a different outcome. Consequently, the court dismissed the appeals and upheld the decisions of the Local Court. The court's reasoning was based on the sound application of the law and the absence of any grounds for overturning the Local Court's decisions.

In light of the court's decision, the appeals were dismissed, and the orders of the Local Court were upheld. The court consolidated the three appeals and dismissed the applications for expedition filed by the applicants. The form of the orders is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

Appeals EA 107 of 2019, EA 109 of 2019 and EA 110 of 2019 be consolidated.

The Applications in an Appeal for expedition in Appeals EA 107 of 2019,

EA 109 of 2019 and EA 110 of 2019 from the orders of Hannam J made

4 October, 14 October and 16 October 2019 filed by the applicant on 23 October 2019 be dismissed.

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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