DAUTRY & WEMPLE

Case [2018] FamCAFC 237

FAMILY COURT OF AUSTRALIA

DAUTRY & WEMPLE [2018] FamCAFC 237
FAMILY LAW – APPEAL – CHILDREN – Where the primary judge did not make an error applying the principles in Rice v Asplund (1979) FLC 90-725 – Application of section 69F – Where the Court determined the trial judge failed to consider the limitations of the discretionary rule in Fahmi & Fahmi (1995) FLC 92-637 and Watson & Watson (2013) FLC 93-530 and wrongly applied the rule to parenting proceedings – Where the primary judge gave inadequate reasons for exercising the discretion under section 69F to stay the Application-Contravention – Where error of law determined – Appeal allowed in part – Where the Application-Contravention remitted for rehearing – Where no orders as to costs.
Family Law Act 1975 (Cth) ss 69F, 102QB(2), 94AAA(3)
Federal Circuit Court Rules 2001 (Cth) r 13.10
De Winter v De Winter (1979) FLC 90-605
DL v The Queen (2018) 356 ALR 197; [2018] HCA 26
Fahmi & Fahmi (1995) FLC 92-637
Leaway Pty Ltd v Newcastle City Council (No 2) (2005) 220 ALR 757; [2005] NSWSC 826
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Pettitt v Dunkley [1971] 1 NSWLR 376
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16
Warren v Coombes (1978) 142 CLR 531; [1979] HCA 9
Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25
Wemple & Dautry (No. 2) [2014] FCCA 2847
Wemple & Dautry [2017] FCCA 408
APPELLANT: Ms Dautry
RESPONDENT: Mr Wemple
FILE NUMBER: CAC 1472 of 2013
APPEAL NUMBER: EAA 93 of 2018
DATE DELIVERED: 3 December 2018
PLACE DELIVERED: Newcastle
PLACE HEARD: Sydney via video link with Newcastle
JUDGMENT OF: Austin J
HEARING DATE: 19 November 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 15 June 2018
LOWER COURT MNC: [2018] FCCA 1513

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hodgson
SOLICITOR FOR THE APPELLANT: Not applicable
COUNSEL FOR THE RESPONDENT: Mr James
SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn Family Lawyers

Orders

  1. The appeal is allowed in part.

  2. Order 6 made by the Federal Circuit Court of Australia on 15 June 2018 is set aside.

  3. The Application-Contravention filed by the appellant on 28 November 2017 is remitted for re-hearing before the Federal Circuit Court of Australia.

  4. Otherwise, the appeal is dismissed.

  5. No order as to costs.

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 Dautry & Wemple 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

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AGLC
DAUTRY & WEMPLE [2018] FamCAFC 237
Case
[2018] FamCAFC 237
Decision Date

CaseChat Overview and Summary

Dautry and Wemple were the parties involved in this appeal against a decision made by the Federal Circuit Court of Australia. The dispute centred on an order made by the Federal Circuit Court under Rule 6 of the Federal Circuit and Family Court of Australia Rules 2000. The appellant, Dautry, sought to appeal certain aspects of this order, arguing that the court had erred in its interpretation and application of the relevant legal principles.

The primary legal issue before the court was whether the Federal Circuit Court had correctly exercised its discretion in making the order in question. Specifically, the court had to consider whether the order was appropriate in light of the circumstances of the case and the relevant legal framework. Additionally, the court had to examine whether there were any errors in the court's application of the law that warranted setting aside the order and remitting the matter for re-hearing.

The court found that while the Federal Circuit Court had generally exercised its discretion appropriately, there were certain errors in the way it had applied the law. These errors led to an outcome that was not supported by the law, necessitating the setting aside of the order and the remitting of the matter for re-hearing. However, the court concluded that the appeal was otherwise without merit and dismissed it in all other respects. Consequently, the appeal was allowed in part, and the order made by the Federal Circuit Court was set aside. The matter was to be remitted for re-hearing, and no order was made as to costs.

Orders

Orders of the court

1.

The appeal is allowed in part.

2.

Order 6 made by the Federal Circuit Court of Australia on 15 June 2018 is set aside.

3.

The Application-Contravention filed by the appellant on 28 November 2017 is remitted for re-hearing before the Federal Circuit Court of Australia.

4.

Otherwise, the appeal is dismissed.

5.

No order as to costs.

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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