Graft & McCormick - [2018] FamCAFC 49

FAMILY COURT OF AUSTRALIA

GRAFT & MCCORMICK

[2018] FamCAFC 49

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the mother filed three Applications in an Appeal – where the mother sought the children be brought before the appeal judge – where the mother sought for a contravention application to be heard by the appeal court – where the mother sought a review of an Appeals Registrar’s procedural order listing the appeals together – where the mother effectively sought to reopen the parenting proceedings – where each application was dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – where the mother required leave to appeal a procedural order setting a matter down for hearing – where the mother did not object at the time to the matter being set down – where there is not merit in any of the asserted grounds seeking leave to appeal – where there is no substantial injustice – where no error of principle is involved – where leave to appeal is refused.

FAMILY LAW – APPEAL – PARENTING – where the mother appeals the summary dismissal of four contravention applications – where the mother appeals the summary dismissal of an Application in a Case – where there was no substantive case before the Court – where the mother appeals a costs order in relation to the summary dismissal of her contravention applications – where the mother seeks orders that the substantive final parenting orders be rescinded – where the appeals lack each or both particularity and foundation – where each appeal is dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Bondelmonte v Bondelmonte (2016) 259 CLR 662

APPELLANT:

Ms Graft

RESPONDENT:

Mr McCormick

FILE NUMBER:

CSC

301

2009

APPEAL NUMBERS:	NOA	32	of	2017
NOA	59	of	2017
NOA	9	of	2018
NOA	17	of	2018

DATE DELIVERED:

14 March 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

14 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 July 2017;

18 October 2017;
21 December 2017;
13 February 2018

LOWER COURT MNC:

[2017] FCCA 2828;
[2017] FCCA 3281;
[2018] FCCA 321

REPRESENTATION

FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Pack

SOLICITOR FOR THE RESPONDENT:

Collier Lawyers Pty Ltd

Orders

Review

The Review of the Appeals Registrar’s orders of 27 February 2018 is dismissed.

Applications in an Appeal

The Application in an Appeal filed 6 November 2017 is dismissed.
The Application in an Appeal filed 30 January 2018 is dismissed.
The Application in an Appeal filed 22 February 2018 is dismissed.
The Application in an Appeal filed 5 March 2018 is dismissed.

Appeals

Leave to appeal the orders of Judge Coker made 10 July 2017 is refused.
The appeal, number NOA59 of 2017, is dismissed.
The appeal, number NOA9 of 2018, is dismissed.
The appeal, number NOA17 of 2018, is dismissed.

Costs Submissions

Within seven (7) days of the date of…

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 & McCormick

Details

AGLC: Graft & McCormick [2018] FamCAFC 49
Case: [2018] FamCAFC 49
Decision Date: 14 March 2018

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Graft & McCormick was heard and determined. The mother filed multiple applications and appeals concerning the care and custody of the children, which were subsequently dismissed by the court. The legal issues encompassed the mother's attempts to have the children brought before the appeal judge, to have a contravention application heard by the appeal court, and to review a procedural order. Additionally, the mother sought leave to appeal a procedural order and contested the summary dismissal of several contravention applications, along with a costs order.

The court meticulously examined the grounds for leave to appeal and found them to be without merit. The mother had not objected to the matter being set down at the time, and there was no substantial injustice or error of principle involved. Consequently, the mother's requests for leave to appeal were denied. The court also found that the appeals related to the contravention applications lacked particularity and foundation, leading to their dismissal. The mother's overarching appeal for the substantive final parenting orders to be rescinded was similarly rejected.

The court ruled that the review of the Appeals Registrar's orders, as well as all the applications in an appeal, were dismissed. The specific appeals numbered NOA59 of 2017, NOA9 of 2018, and NOA17 of 2018 were also dismissed. The orders mandated the father to file and serve submissions regarding the costs of the appeals within seven days, followed by the mother's reply submissions within twenty-one days. The father was then required to respond to the mother's submissions within seven days of receipt. The form of the order was subject to entry in the Court's records.

Orders

Orders of the court

Review

The Review of the Appeals Registrar’s orders of 27 February 2018 is dismissed.

Applications in an Appeal

The Application in an Appeal filed 6 November 2017 is dismissed.

The Application in an Appeal filed 30 January 2018 is dismissed.

The Application in an Appeal filed 22 February 2018 is dismissed.

The Application in an Appeal filed 5 March 2018 is dismissed.

Appeals

Leave to appeal the orders of Judge Coker made 10 July 2017 is refused.

The appeal, number NOA59 of 2017, is dismissed.

The appeal, number NOA9 of 2018, is dismissed.

The appeal, number NOA17 of 2018, is dismissed.

Costs Submissions

10.

Within seven (7) days of the date of these orders, the father file and serve any submissions in relation to costs of the appeals.

11.

Within twenty-one (21) days of the date of these orders, the mother file and serve any submissions in reply to the submissions of the father.

12.

The father file and serve any reply to the mother’s submissions in reply within seven (7) days of receipt of the mother’s submissions.

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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