Kitsannis and Netopoulis & Anor - [2010] FamCAFC 214

Family Court Of Australia

KITSANNIS & NETOPOULIS AND ANOR

[2010] FamCAFC 214

FAMILY LAW - APPEAL – From a judgment of a Federal Magistrate delivered extempore – Controversy as to the duration of time the child is to spend with the maternal grandparents – Where it was a very limited and narrow controversy – Whether the Federal Magistrate failed to adequately deal with relevant statutory considerations and did not relate those considerations to the facts of the case – Whether the Federal Magistrate failed to give adequate reasons – Whether the Federal Magistrate failed to deal with some discrete factual matters – Where the outcome was well within the discretion of the Federal Magistrate – Appeal dismissed

FAMILY LAW - COSTS – The Appellant to pay the costs of the First and Second Respondent

A v J (1995) FLC 92-619
Aldridge & Keaton (2009) FLC 93-421
AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Cross v Beaumont (2008) 39 Fam LR 389
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jacks & Samson (2008) FLC 93-387

Kennedy & Kennedy [2010] FamCAFC 195

Korban & Korban [2009] FamCAFC 143
Maday and Maday (1985) FLC 91-636
Marsden & Winch (No 3) [2007] FamCA 1364
Norbis v Norbis (1986) 161 CLR 513
Porter & Byrne [2009] FamCAFC 8
Potts & Bims and Ors [2007] FamCA 394
Rice and Asplund (1979) FLC 90-725
Rollings v Rollings (2009) 230 FLR 396
Samson & Jacks [2008] FamCA 176

Smith and Smith (1994) FLC 92-488
Taylor and Barker (2007) FLC 93-345

Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 60CG, s 61DA, s 65C(ba)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – s 60B, s 60CC(3)(b)(ii), s 60CC(3)(d)(ii), s 60CC(3)(f)(ii)
Family Law Rules 2004 (Cth) – r 22.22

APPELLANT:

Mr Kitsannis

FIRST RESPONDENT:

Ms Netopoulis

SECOND RESPONDENT:

Mr Netopoulis

FILE NUMBER:

MLC

4463

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

1 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Boland, O’Ryan & Bennett JJ

HEARING DATE:

5 May 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 October 2009

LOWER COURT MNC:

[2009] FMCAfam 1126

Representation

COUNSEL FOR THE APPELLANT:

Mr V.A. Morfuni SC

SOLICITOR FOR THE APPELLANT:

F Butera & Co Lawyers

COUNSEL FOR THE FIRST AND SECOND

RESPONDENTS:

Mr D. Baker

SOLICITOR FOR THE FIRST AND

SECOND RESPONDENTS:

Cash & Stavroulakis Lawyers

Orders

The appeal be dismissed.
The Appellant pay the costs of the First and Second Respondent of and incidental to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Kitsannis & Netopoulis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 91 of 2009
File Number: MLC 4463 of 2009

Mr Kitsannis

Appellant

And

Ms…

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.

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Details

Case: [2010] FamCAFC 214
Decision Date: 1 November 2010

CaseChat Overview and Summary

The case of Kitsannis and Netopoulis & Anor involved an appeal against a judgment from a Federal Magistrate concerning the duration of time a child should spend with the maternal grandparents. The lower court had delivered its judgment extempore, and the appellant contended that the magistrate had failed to adequately consider statutory provisions, relate these to the facts, provide adequate reasons, and address certain discrete factual matters. The appeal was heard and determined by a higher court.

The legal issues before the court were whether the Federal Magistrate's judgment adequately considered the relevant statutory framework and the facts of the case, whether the magistrate provided sufficient reasons for the judgment, and whether the magistrate had failed to address certain factual matters. The court was required to determine if the outcome of the case fell within the discretionary power of the Federal Magistrate.

In evaluating the appeal, the court found that the Federal Magistrate's judgment was within the bounds of acceptable discretion. The court determined that the magistrate had appropriately considered the statutory provisions and related them to the facts, provided adequate reasons for the judgment, and had addressed the relevant factual matters. Consequently, the appeal was dismissed. The court also ordered the appellant to pay the costs of the first and second respondents for the appeal and any incidental costs.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first and second respondents for and incidental to the appeal.

Orders

Orders of the court

The appeal be dismissed.

The Appellant pay the costs of the First and Second Respondent of and incidental to the appeal.

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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