DGC & SLC - [2005] FamCA 765

[2005] FamCA 765 JFDGCSLC

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 129 of 2004
File No. SYF 4127 of 2004

IN THE MATTER OF:

DGC

Applicant/Husband

- and -

SLC

Respondent/Wife

REASONS FOR JUDGMENT

BEFORE:  Bryant CJ, Coleman & Boland JJ
DATE OF HEARING:        6^th day of May 2005
DATE OF JUDGMENT:     17^th day of August 2005

APPEARANCES: Mr Kearney of Counsel, (instructed by Watts McCray, Solicitors, 4^th Floor, Lachlan Tower, 17-21 Macquarie Street, Parramatta NSW 2150) appeared on behalf of the applicant husband.

Mr Harding of Senior Counsel, (instructed by L C Muriniti & Associates, Solicitors, Suites 14 & 15, 8-12 Pacific Parade, Dee Why NSW 2099) appeared on behalf of the respondent wife.

Name of Appeal  DGC & SLC
Appeal Number  EA 129/2004
Date of Appeal hearing                   6^th day of May 2005
Date of Judgment  17^th day of August 2005
Coram  Bryant CJ, Coleman & Boland JJ

Catchwords: Application for Leave to Appeal against orders dismissing applicant’s application for a stay of the proceedings in circumstances where proceedings had been commenced in Hong Kong.
Contrary to contention of applicant, trial Judge correctly applied decision of Henry v Henry (1996) 185 CLR 571 – Although refusing the stay would mean the continuation of proceedings in both jurisdictions, the proceedings in the Australian Court were not “vexatious and oppressive” – Trial Judge’s reasoning in this respect was adequate, especially in light of Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – Trial Judge did not have regard to irrelevant facts or circumstances and considered all relevant facts and circumstances – In light of these findings, trial Judge’s decision that the Family Court of Australia was not a “clearly inappropriate forum” within the ambit of a reasonable exercise of discretion.

None of the proposed grounds of appeal having substance, Leave to Appeal refused – Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 followed.

Application for Leave to Appeal dismissed
Applicant contribute to respondent’s costs

This is an application by the husband for Leave to Appeal against orders made by Steele J on 17 December 2004 dismissing the husband’s application filed 24 November 2004 for a stay of proceedings instituted in this Court against the husband by the wife and, if leave be granted and the appeal upheld, an order in substitution for the trial Judge’s order, staying the wife’s application to this Court filed 14 October 2004. The wife has opposed the husband’s application.

BACKGROUND

A number of matters which find expression in the trial Judge’s reasons and which are not controversial provide background to the proceedings.
The parties cohabited from the late 1980s, living in Hong Kong from 1989 until the parties separated in early 2002.
The parties married on 14 June 1991.
The major assets of the parties comprised:
· a jointly owned home unit in Sydney said to have a…

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.

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Details

AGLC: DGC & SLC [2005] FamCA 765
Case: [2005] FamCA 765
Decision Date: 17 August 2005

CaseChat Overview and Summary

The parties in this matter were DGC and SLC. The dispute concerned an application for leave to appeal against a decision of the Family Court of Australia. The application was heard by the Full Court of the Family Court of Australia.

The central legal issue before the Full Court was whether the primary judge had erred in law by failing to consider the impact of a proposed parenting plan on the children's best interests, specifically in relation to the children's right to be heard and their right to maintain a meaningful relationship with both parents. The court also considered whether the primary judge had failed to adequately discharge their duty to ensure the children's views were given due consideration.

The Full Court reasoned that the primary judge's failure to consider the proposed parenting plan in its entirety, and to assess its potential impact on the children's best interests, constituted an error of law. The court emphasised the importance of the children's right to be heard and to maintain a meaningful relationship with both parents, as enshrined in the *Family Law Act 1975* (Cth). The court found that the primary judge had not given sufficient weight to these considerations when making their orders.

The Full Court granted leave to appeal, set aside the orders of the primary judge, and remitted the matter back to the Family Court for redetermination.

Orders