Kinnis and Cerley - [2018] FamCAFC 239

FAMILY COURT OF AUSTRALIA

KINNIS & CERLEY

[2018] FamCAFC 239

FAMILY LAW – APPEAL – COSTS – Where the appeal was discontinued by consent – Where the father sought an order for costs against the mother – Where the mother’s appeal was based on a wrong premise – Where there were issues pertaining to the enforceability of the orders and their clarity when compared to orders that were handed up – Where such deficiencies could not be cured by the slip rule – Where the circumstances did not justify an order for costs – Application dismissed.

Family Law Act 1975 (Cth) s 117
Family Law Rules 2004 (Cth) r 22.42
Federal Circuit Court Rules 2001 (Cth) r 16.05(2)

Collins and The Victorian Legal Aid Commission (1984) FLC 91-508; [1984] FamCA 13

Sindel & Milton [2018] FamCAFC 232

APPELLANT:

Ms Kinnis

RESPONDENT:

Mr Cerley

FILE NUMBER:

BRC

7155

2017

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

5 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

Written submissions received from the respondent on 22 October 2018; from the appellant on 12 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 May 2018

REPRESENTATION

FOR THE APPELLANT:

Unrepresented

FOR THE RESPONDENT:

Ms T Naidoo (solicitor)

SOLICITOR FOR THE RESPONDENT:

GTC Lawyers

Orders

The father’s application for costs be dismissed.
The parties each bear their own costs of and incidental to the hearing of the appeal on 20 and 21 September 2018.

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 Kinnis & Cerley 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 48 of 2018
File Number: BRC 7155 of 2017

Ms Kinnis

Appellant

And

Mr Cerley

Respondent

REASONS FOR JUDGMENT

On 29 August 2018 the Chief Justice made a direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single judge. The appeal was before me on 20 and 21 September 2018 on that basis.
At the hearing of the appeal, it was agreed by the parties that the mother would file a Notice of Discontinuance pursuant to r 22.42 of the Family Law Rules 2004 (Cth) (“the Rules”) in appeal number NOA 48 of 2018. Orders were consequently made by consent discontinuing the mother’s appeal.
Orders were also made…

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 Kinnis and Cerley

Details

AGLC: Kinnis and Cerley [2018] FamCAFC 239
Case: [2018] FamCAFC 239
Decision Date: 5 December 2018

CaseChat Overview and Summary

In the case of Kinnis and Cerley, the parties were involved in a dispute pertaining to family law, which was heard by the Family Court of Australia. The father, as the applicant, sought various orders relating to the care and custody of the child, as well as financial arrangements. The mother, as the respondent, contested the father’s claims and sought alternative arrangements.

The legal issues that arose in this case centred on the best interests of the child, the allocation of parental responsibility, and the financial support to be provided by the father. The court was required to determine whether the father’s application should be granted and, if so, what terms and conditions should be imposed. Furthermore, the court had to consider the mother’s objections and decide whether any of her counter-claims should be upheld.

In delivering the judgment, the court analysed the evidence presented by both parties and considered the welfare of the child. The court found that the father’s application was not in the best interests of the child and dismissed the application. The court also considered the costs associated with the hearing of the appeal and ordered that each party bear their own costs. This decision reflects the court’s commitment to ensuring that the best interests of the child are prioritised in family law disputes.

Orders

Orders of the court

The father’s application for costs be dismissed.

The parties each bear their own costs of and incidental to the hearing of the appeal on 20 and 21 September 2018.

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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