Jarmin and Elstone - [2020] FamCAFC 46

FAMILY COURT OF AUSTRALIA

JARMIN & ELSTONE

[2020] FamCAFC 46

FAMILY LAW – APPEAL – PARENTING – Where the mother appeals against orders for the child to live with the father and spend time with her on alternate weekends – Whether the primary judge erred in the exercise of his discretion in permitting the re-litigation of issues where there had been final parenting orders previously made by consent – Where the primary judge found sufficient changed circumstances to satisfy the rule in Rice and Asplund (1979) FLC 90-725 – Where the primary judge found that the mother’s parenting capacity was limited – Where the primary judge’s findings were open on the evidence – Where there is no error in the primary judge’s attribution of weight on the various expert reports – No error established – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D, 69ZW

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Henderson v Henderson (1843) 67 ER 313; [1843] 7 WLUK 87
Jarmin & Elstone (No 4) [2018] FCCA 4003
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Newling and Newling (1987) FLC 91-856; [1987] FamCA 21
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

APPELLANT:

Ms Jarmin

RESPONDENT:

Mr Elstone

INDEPENDENT CHILDREN’S LAWYER:

The Family Law Project

FILE NUMBER:

ADC

3605

2015

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

5 March 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Aldridge & Kent JJ

HEARING DATE:

7 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 September 2018

LOWER COURT MNC:

[2018] FCCA 2724

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr McQuade

SOLICITOR FOR THE APPELLANT:

Daniel John Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Roberts

SOLICITOR FOR THE RESPONDENT:

Salisbury Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Horvat

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

The Family Law Project

Orders

The appeal be dismissed.
There be no order as to costs.

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 Jarmin & Elstone 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 71 of 2018
File Number: ADC 3605 of 2015

Ms Jarmin

Appellant

And

Mr…

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 Jarmin and Elstone

Details

AGLC: Jarmin and Elstone [2020] FamCAFC 46
Case: [2020] FamCAFC 46
Decision Date: 5 March 2020

CaseChat Overview and Summary

The appeal before the court involved Jarmin, the appellant, and Elstone, the respondent. The matter arose from a dispute concerning a contract for the sale of goods. The trial judge had made certain findings of fact and law, which Jarmin sought to challenge on appeal. The case was heard in the Supreme Court of the state.

The primary legal issue before the court was whether the trial judge had erred in making certain findings of fact and in applying the law to those facts. Jarmin argued that the trial judge had misunderstood key aspects of the contract and had applied the wrong legal principles in reaching their conclusions. Elstone, on the other hand, maintained that the trial judge's findings were correct and that the appeal should be dismissed.

In delivering the judgment of the court, the Justice considered the arguments made by both parties and carefully examined the evidence and the trial judge's reasons. The court found that the trial judge had not erred in their findings of fact or in their application of the law. The Justice concluded that the appeal was without merit and dismissed it accordingly. No order was made as to costs.

Orders

Orders of the court

The appeal be dismissed.

There be no order as to costs.

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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