Gelbvieh & Senepol

[2007] FamCA 476

FAMILY COURT OF AUSTRALIA

GELBVIEH & SENEPOL [2007] FamCA 476

FAMILY LAW – APPEAL FROM FAMILY COUR T OF AUSTRALIA – EXERCISE OF DISCRETION – Assertion that the exercise of discretion by trial Judge miscarried by virtue of a material error of fact not established. De Winter v De Winter (1979) FLC 90-605 cited. Complaint that trial Judge erred by failing to give sufficient weight to expert opinion evidence not established. Gronow v Gronow (1979) 144 CLR 513 cited. Challenge to the adequacy of trial Judge’s reasons for judgment not made out. Bennett and Bennett (1991) FLC 92-191 and Soulemezis v Dudley (Holdings) Pty Ltd (9187) 10 NSWLR 247 cited. Complaint that trial Judge erred in certain findings regarding the father’s capacity and relationship with the child not established. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588 and CDJ v VAJ (1998) 197 CLR 172 cited. That trial Judge failed to have regard for the relative financial position of the parties not established

Bennett and Bennett (1991) FLC 92-191
De Winter v De Winter (1979) FLC ¶90-605
Gronow v Gronow (1979) 144 CLR 513
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
W v W (Abuse allegations: unacceptable risk) (2005) FLC 93-235
CDJ v VAJ (1998) FLC 92-828

APPELLANT: MS GELBVIEH  

RESPONDENT: MR SENEPOL

FILE NUMBER: DNF 144 of 2005

APPEAL NUMBER: NA 52 of 2006

DATE DELIVERED: 24 May 2007

PLACE DELIVERED: PARRAMATTA

JUDGMENT OF: KAY, COLEMAN & WARNICK JJ  

HEARING DATE:  27 November 2006

LOWER COURT JURISDICTION: FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE: 09/06/06

LOWER COURT MNC: [2006] FamCA 492

REPRESENTATION

COUNSEL FOR THE APPELLANT: R. D

SOLICITOR FOR THE APPELLANT:

JT

J T Barrister & Solicitor

COUNSEL FOR THE RESPONDENT: P M S.C.

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

C B

C B Family Lawyer

D G

D NT 0801

Orders

1. That the appeal be dismissed.

2. That written submissions in support of any application for costs of the appeal be filed and served within 28 days.

3. That written submissions in response to any submissions in relation to costs be filed and served within 56 days.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Gelbvieh & Senepol.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number:  NA 52/2006
File Number: DNF 144/2005

MS GELBVIEH   

Appellant

And

MR SENEPOL 

Respondent

REASONS FOR JUDGMENT

1. By Notice of Appeal filed 6 July 2006 Ms Gelbvieh (“the mother”) appealed against orders made by Dawe J in proceedings between the mother and Mr Senepol (“the father”) on 9 June 2006.

2. Her Honour’s orders provided that the child of the parties E Gelbvieh born in May…