HADAWAY & BECKHAM - [2019] FamCAFC 137

FAMILY COURT OF AUSTRALIA

HADAWAY & BECKHAM

[2019] FamCAFC 137

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Parenting – Where the father appeals against an order made by a Judge of the Federal Circuit Court of Australia dismissing his application to re-open proceedings – Where the father could not establish before the trial judge any material change in circumstances pursuant to the principles in Rice & Asplund (1979) FLC 90-725 (“Rice v Asplund”) – Where the father sought to adduce further evidence – Where proposed evidence not admitted under s 93A(2) of the Family Law Act 1975 (Cth) – Where it was open for the trial judge to find that there was no significant change in circumstances – Where the trial judge correctly applied the principles of Rice & Asplund to the evidence adduced at trial – No appealable error – Where there is no miscarriage of the trial judge’s discretion – Where the appeal lacks merit – Application in an Appeal dismissed – Appeal dismissed – Costs – Where the appeal is wholly unsuccessful – Appellant ordered to pay the respondent’s costs.

Family Law Act 1975 (Cth) ss 65DAA(3), 93A(2)
Federal Circuit Court Rules 2001 (Cth) r 25B.04

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Searson & Searson (2017) FLC 93-788; [2017] FamCAFC 119
SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16

APPELLANT:

Mr Hadaway

RESPONDENT:

Ms Beckham

FILE NUMBER:

BRC

7341

2015

APPEAL NUMBER:

NOA

121

2018

DATE DELIVERED:

1 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Austin JJ

HEARING DATE:

1 August 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 December 2018

LOWER COURT MNC:

[2018] FCCA 3681

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hackett

SOLICITOR FOR THE APPELLANT:

PPCS Lawyers

COUNSEL FOR THE RESPONDENT:

Dr J Brasch QC

SOLICITOR FOR THE RESPONDENT:

Damien Greer Lawyers

Orders

The Application in an Appeal filed on 17 July 2019 is dismissed.
The Response to an Application in an Appeal filed on 24 July 2019 is dismissed.
The appeal against the orders of a Judge of the Federal Circuit Court made on 14 December 2018 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $16,369.51.

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 Hadaway & Beckham has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: 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.

Continue reading HADAWAY & BECKHAM

Details

AGLC: HADAWAY & BECKHAM [2019] FamCAFC 137
Case: [2019] FamCAFC 137
Decision Date: 1 August 2019

CaseChat Overview and Summary

The case involved Hadaway, the appellant, and Beckham, the respondent. The dispute was an appeal against orders made by a judge of the Federal Circuit Court on 14 December 2018. The appellant filed an Application in an Appeal on 17 July 2019, and the respondent filed a Response to an Application in an Appeal on 24 July 2019. The central issue before the court was whether the appeal against the orders of the judge should be upheld or dismissed.

The court considered the grounds of the appeal and the arguments presented by both parties. The appellant argued that the orders made by the judge were erroneous and should be overturned. The respondent, on the other hand, contended that the orders were correctly made and should be upheld. After careful consideration of the submissions, the court found that the appeal did not have merit and dismissed it. The court also dismissed the Application in an Appeal and the Response to an Application in an Appeal. In addition, the appellant was ordered to pay the respondent's costs of and incidental to the appeal, fixed in the sum of $16,369.51.

The court's decision was based on the grounds that the appeal did not establish any error in the orders made by the judge. The court found that the appellant's arguments were not persuasive, and the orders were correctly made. The court further found that the appeal was not an appropriate means of challenging the orders, and the appellant had not demonstrated any error that warranted the appeal being upheld. The court also considered the respondent's costs and found that the appellant should bear the costs of the appeal. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal filed on 17 July 2019 is dismissed.

The Response to an Application in an Appeal filed on 24 July 2019 is dismissed.

The appeal against the orders of a Judge of the Federal Circuit Court made on 14 December 2018 is dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $16,369.51.

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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