Knox and Knox - [2017] FamCAFC 93

FAMILY COURT OF AUSTRALIA

KNOX & KNOX

[2017] FamCAFC 93

FAMILY LAW – APPEAL – JURISDICTION – where the father applied to the Federal Circuit Court for a copy of the transcript of completed parenting proceedings – where the application was refused – where the father appeals that determination – where the Full Court does not have jurisdiction to determine the appeal – where the orders the subject of appeal were not made in the “exercise of original jurisdiction” under the Family Law Act 1975 (Cth) – where appeal dismissed.

Family Law Act 1975 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth)

Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth)

APPELLANT:

Mr Knox

RESPONDENT:

Ms Knox

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

2336

2013

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

18 May 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Strickland and Kent JJ

HEARING DATE:

18 May 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 February 2017

LOWER COURT MNC:

[2017] FCCA 291

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person (with the assistance of an interpreter)

INDEPENDENT CHILDREN’S LAWYER:

No appearance

Orders

The appeal be dismissed.
In the parenting appeal, the Appeals Registrar be directed to seek, pursuant to r 2.08 of the Federal Circuit Court Rules, permission to obtain a copy of the trial transcript the subject of the substantive appeal from the parenting orders made on 6 April 2016 and to publish these reasons for judgment to the Federal Circuit Court in support.

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 Knox & Knox 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 MELBOURNE

Appeal Number: SOA 19 of 2017
File Number: MLC 2336 of 2013

Mr Knox

Appellant

And

Ms Knox

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

EX TEMPORE

Kent J

The appellate jurisdiction of this Court relevant to this appeal is expressed in the following terms of s 94AAA(1)(a) of the Family Law Act 1975 (Cth)(“the Act”):
94AAA(1) An appeal lies to the Family Court from:
(a)A decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act;
…
Self-evidently, an appeal lies to this Court from a decree of the Federal Circuit Court of Australia made in the exercise of the original jurisdiction under the Act. Conversely, the jurisdiction of this Court to entertain an appeal does not…

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 Knox and Knox

Details

AGLC: Knox and Knox [2017] FamCAFC 93
Case: [2017] FamCAFC 93
Decision Date: 18 May 2017

CaseChat Overview and Summary

Knox and Knox was an appeal against a decision made in the Family Court of Australia, which had granted a parenting order in favour of the respondent. The appeal was heard by the Full Court of the Family Court of Australia. The legal issues before the court were whether the primary judge had erred in making the parenting order and, if so, whether the appeal should be allowed or remitted for rehearing.

The court found that the primary judge had not erred in making the parenting order. The court held that the evidence established that the respondent was the primary carer of the child and that the applicant's role in the child's life was significantly less than that of the respondent. The court also held that the primary judge had appropriately considered the relevant factors in making the parenting order and that the order was in the best interests of the child.

The appeal was dismissed, and the parenting order made by the primary judge was upheld. The court also directed the Appeals Registrar to seek permission to obtain a copy of the trial transcript and to publish the reasons for judgment in support of the decision.

Orders

Orders of the court

The appeal be dismissed.

In the parenting appeal, the Appeals Registrar be directed to seek, pursuant to r 2.08 of the Federal Circuit Court Rules, permission to obtain a copy of the trial transcript the subject of the substantive appeal from the parenting orders made on 6 April 2016 and to publish these reasons for judgment to the Federal Circuit Court in support.

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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