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 | of | 2015 |
| APPEAL NUMBER: | SOA | 71 | of | 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… |
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- Jarmin and Elstone [2020] FamCAFC 46
- Case
- [2020] FamCAFC 46
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal be dismissed.
2.
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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