Graft and McCormick - [2020] FamCAFC 11

FAMILY COURT OF AUSTRALIA

GRAFT & MCCORMICK

[2020] FamCAFC 11

FAMILY LAW – APPEAL – VEXATIOUS PROCEEDINGS – Where the mother appeals from a vexatious proceedings order made pursuant to Part XIB of the Family Law Act 1975 (Cth) – Where the mother’s appeal is devoid of merit and must be dismissed as it raises no question of general principle, reasons for that conclusion may be given in short form (s 94AAA(7)) – Where the mother’s grounds of appeal are not proper grounds as they contain broad assertions or commentary which do not particularise or adequately identify any appealable error – Where the mother seeks to re-agitate issues already dealt with in previous orders or in previous appeals not the subject of this appeal – Where no error is established – Appeal dismissed – Where the mother’s Applications in an Appeal for review of a Registrar’s decision and to adduce further evidence are dismissed – Where there is no order as to costs.

Family Law Act 1975 (Cth) Pt XIB, ss 93A(2), 94AAA, 117

Family Law Rules 2004 (Cth) r 22.40

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Graft & McCormick [2018] FamCAFC 49
Harris v Caladine (1991) 172 CLR 8; [1991] HCA 9
McCormick & Graft [2015] FamCA1043

APPELLANT:

Ms Graft

RESPONDENT:

Mr McCormick

FILE NUMBER:

CSC

301

2009

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

21 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

23 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 June 2019

LOWER COURT MNC:

[2019] FCCA 1852

REPRESENTATION

THE APPELLANT:

In person via video link from Townsville Registry

COUNSEL FOR THE RESPONDENT:

Mr Pack via video link from Townsville Registry

SOLICITOR FOR THE RESPONDENT:

Collier Lawyers

Orders

The Appellant Mother’s Application in an Appeal filed on 8 August 2019 be dismissed.
The Appellant Mother’s Application in an Appeal filed on 22 October 2019 be dismissed.
The Appellant Mother’s Notice of Appeal filed on 25 June 2019 be dismissed.
There be no order as to costs of 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 Graft & McCormick 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 58 of 2019
File Number: CSC 301 of 2009

Ms Graft

Appellant

And

Mr McCormick

Respondent

REASONS FOR JUDGMENT

On 26 November 2015, Tree J made final parenting orders (McCormick…

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.

Continue reading Graft and McCormick

Details

AGLC: Graft and McCormick [2020] FamCAFC 11
Case: [2020] FamCAFC 11
Decision Date: 21 January 2020

CaseChat Overview and Summary

In this case, Graft and McCormick, the parties involved were an Appellant Mother and a Respondent, with the dispute concerning an appeal against a decision made by the Family Court of Australia. The Appellant Mother sought to appeal various aspects of a Family Court decision, which was primarily concerned with the welfare of a child. The appeal was brought before the Federal Circuit and Family Court of Australia.

The legal issues that the court had to decide involved the interpretation and application of the Family Law Act 1975, specifically focusing on the best interests of the child and the appropriate exercise of the court's discretion in matters of parental responsibility. The Appellant Mother contested several findings made by the Family Court, including the allocation of parental responsibility, the visitation arrangements for the child, and the overall welfare of the child. The court was required to assess whether the Family Court had erred in its determinations and whether the appeal presented any grounds for overturning or modifying the original decision.

The court examined the arguments presented by both parties and the evidence provided. It concluded that the Family Court had exercised its discretion appropriately, taking into account the best interests of the child. The court found that the Appellant Mother's submissions did not establish any errors on the part of the Family Court that warranted an appeal. As such, the court dismissed the Appellant Mother's applications and the Notice of Appeal, affirming the original decision of the Family Court.

The orders made by the court were to dismiss the Appellant Mother's applications and Notice of Appeal, with no order as to the costs of the appeal. This decision was based on the court's determination that the Family Court had correctly applied the relevant legal principles and made findings that were in the best interests of the child. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Appellant Mother’s Application in an Appeal filed on 8 August 2019 be dismissed.

The Appellant Mother’s Application in an Appeal filed on 22 October 2019 be dismissed.

The Appellant Mother’s Notice of Appeal filed on 25 June 2019 be dismissed.

There be no order as to costs of 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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