Ellwood and Ravenhill - [2019] FamCAFC 153

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

2008

APPEAL NUMBER:

NOA

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…

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

Case: [2019] FamCAFC 153
Decision Date: 6 September 2019

CaseChat Overview and Summary

In the Federal Court of Australia, Ellwood and Ravenhill concerned a dispute between a mother and father regarding the care and upbringing of their children. The mother, Ms Ellwood, initiated proceedings seeking a parenting order that would allow her to have the children reside with her. The father, Mr Ravenhill, opposed these proceedings and sought orders for the children to reside with him. The Federal Circuit Court of Australia ultimately made orders that favoured the mother’s application and granted her the right to have the children reside with her. Mr Ravenhill appealed the decision of the Federal Circuit Court of Australia, contending that the court had made errors in its assessment of the evidence and in its application of the relevant statutory provisions.

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

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.

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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