FAMILY COURT OF AUSTRALIA
| ELMI & MUNRO | [2019] FamCAFC 138 |
| FAMILY LAW – APPEAL – PARENTING – Where the trial judge considered that Rice and Asplund (1979) FLC 90-725 had not been correctly decided – Where there is no scope for doubting the correctness of Rice and Asplund (1979) FLC 90-725 – Where there is an obligation on a judge of the Federal Circuit Court of Australia or the Family Court of Australia to follow and apply decisions of the Full Court of the Family Court of Australia – Where the trial judge wrongly relied on principles of res judicata and failed to follow and apply the principles in Rice and Asplund (1979) FLC 90-725 – The concept of res judicata or issue estoppel does not apply to parenting cases – Appeal allowed and matter remitted – Costs certificates granted for costs of the appeal and rehearing. |
| Family Law Act 1975 (Cth) Part VII, ss 60CA, 65D(2) Federal Proceedings (Costs) Act 1981 (Cth) ss 8, 9 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bower, George Spencer and Kenneth R Handley, Spencer Bower and Handley: Res Judicata (LexisNexis Butterworths, 4th edition, 2009) |
| APPELLANT: | Mr Elmi |
| RESPONDENT: | Ms Munro |
| FILE NUMBER: | MLC | 9529 | of | 2018 |
| APPEAL NUMBER: | SOA | 87 | of | 2018 |
| DATE DELIVERED: | 16 August 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 5 June 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 November 2018 |
| LOWER COURT MNC: | [2018] FCCA 3114 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bartfeld QC with Mr Holmes |
| SOLICITOR FOR THE APPELLANT: | Schetzer Constantinou Lawyers |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed and the order made on 1 November 2018 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing.
There be no order as to costs.
The Court grants to the appellant father a costs certificate pursuant to 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 father in respect of the costs incurred by…
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- Elmi & Munro [2019] FamCAFC 138
- Case
- [2019] FamCAFC 138
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and application of procedural rules in family law matters, specifically whether the Federal Circuit Court correctly exercised its discretion in managing the proceedings. The court had to consider whether the lower court's order was in accordance with the law and whether any errors were made that could have affected the outcome of the case.
The Federal Court of Australia found that the Federal Circuit Court had indeed erred in its exercise of discretion. The appellate court held that the lower court had not properly considered the implications of the procedural steps taken and had misapplied the relevant legal principles. Consequently, the appeal was allowed, and the order made on 1 November 2018 was set aside. The case was remitted to the Federal Circuit Court for a rehearing, ensuring that the procedural issues were correctly addressed. The Court also granted a costs certificate to the appellant father for the appeal and to both parties for the new trial, as it deemed appropriate for the Attorney-General to authorise payments under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
The appeal be allowed and the order made on 1 November 2018 be set aside.
2.
The proceedings be remitted to the Federal Circuit Court of Australia for rehearing.
3.
There be no order as to costs.
4.
The Court grants to the appellant father a costs certificate pursuant to 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 father in respect of the costs incurred by him in relation to the appeal.
5.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of costs incurred by them in relation to the new trial ordered.
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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