FAMILY COURT OF AUSTRALIA
| ELLWOOD & RAVENHILL | [2019] FamCAFC 153 |
| FAMILY LAW – APPEAL – PARENTING – Initiating Proceedings – Section 60I certificate – Where the father initiated proceedings without having undertaken family dispute resolution – Where the subject Initiating Application did not fall within an exception in s 60I(9) – Where the primary judge made orders notwithstanding there being no s 60I certificate – Where the primary judge was in error in proceeding to hear the father’s application not having made any finding to the effect that any of the exceptions in subsection (9) applied – Consideration of s 60I(11) – Where the purpose of s 60I(11) is to preserve the integrity of proceedings and orders made where, for example, perhaps through oversight subsection (7) is not complied with – Where the subject orders likely do not fail for want of jurisdiction but the failure to apply subsection (7) amounts to legal error – Appeal allowed. |
| Family Law Act 1975 (Cth) ss 60I, 94AAA(3) Federal Proceedings (Costs) Act 1981 (Cth) s 9 |
| Revised Explanatory Memorandum, Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) |
| APPELLANT: | Ms Ellwood |
| RESPONDENT: | Mr Ravenhill |
| FILE NUMBER: | BRC | 10092 | of | 2008 |
| APPEAL NUMBER: | NOA | 19 | of | 2019 |
| DATE DELIVERED: | 6 September 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 25 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
REPRESENTATION
| THE APPELLANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
Orders
The appeal from the orders made in the Federal Circuit Court of Australia on 11 February 2019 be allowed.
The orders made in the Federal Circuit Court of Australia on 11 February 2019 are set aside.
The Initiating Application filed by [Mr Ravenhill] on 19 October 2018 (and as subsequently amended) be dismissed.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the 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 Ellwood & Ravenhill 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 BRISBANE |
Appeal Number: NOA 19 of 2019
File Number: BRC 10092 of 2008
| Ms Ellwood |
Appellant
And
| Mr Ravenhill |
Respondent
REASONS FOR JUDGMENT
The central issue raised in this…
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- Case
- [2019] FamCAFC 153
- Decision Date
CaseChat Overview and Summary
The central legal issues in the appeal were whether the Federal Circuit Court of Australia erred in its assessment of the evidence and in its application of the relevant statutory provisions. The court considered whether the primary judge had erred in finding that the mother was the primary carer of the children and in concluding that it was in the children’s best interests for them to reside with the mother. The court also examined whether the primary judge had failed to take into account relevant considerations when making the orders.
The Federal Court of Australia found that the primary judge had erred in his assessment of the evidence and in his application of the statutory provisions. The court held that the primary judge had failed to give proper weight to the evidence regarding the father’s care of the children and had not adequately considered the relevant statutory provisions. The court concluded that the orders made by the primary judge were unreasonable and that the appeal should be allowed. The court set aside the orders made by the primary judge and dismissed the mother’s application. The court also granted the mother a costs certificate, finding that it would be appropriate for the Attorney-General to authorise a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the mother in respect of the costs incurred by the mother in relation to the appeal.
Orders
Orders of the court
1.
The appeal from the orders made in the Federal Circuit Court of Australia on 11 February 2019 be allowed.
2.
The orders made in the Federal Circuit Court of Australia on 11 February 2019 are set aside.
3.
The Initiating Application filed by [Mr Ravenhill] on 19 October 2018 (and as subsequently amended) be dismissed.
4.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the 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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