Mahoney & Dieter

Case [2019] FamCAFC 39

FAMILY COURT OF AUSTRALIA

MAHONEY & DIETER [2019] FamCAFC 39
FAMILY LAW – APPEAL – PARENTING – Appeal against dismissal of application for parenting orders pursuant to the principles of Rice and Asplund – Where the parenting orders were made in New Zealand and registered in Australia – Where the appellant adduced evidence about her mental health – Where the parenting orders were not predicated on the appellant suffering a mental illness – Where the appellant misconstrued the basis of the parenting orders – Where the appellant sought to challenge the New Zealand judgment – Use of New Zealand judgment –  Risk of harm – Errors of fact – Where the errors of fact are immaterial to the order made – Appeal dismissed.
Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZT
Family Court Rules 2002 (New Zealand) r 204
Carriel & Lendrum (2015) FLC 93-640; [2015] FamCAFC 43
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
APPELLANT: Ms Mahoney
RESPONDENT: Mr Dieter
FILE NUMBER: MLC 11835 of 2017
APPEAL NUMBER: SOA 49 of 2018
DATE DELIVERED: 7 March 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Alstergren DCJ, Ryan & Kent JJ
HEARING DATE: 14 November 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 27 June 2018
LOWER COURT MNC: [2018] FamCA 532

REPRESENTATION

THE APPELLANT: In person with a McKenzie Friend
COUNSEL FOR THE RESPONDENT: Ms Harris
SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

Orders

  1. That the application in an appeal to admit the appellant’s supplementary appeal book be allowed.

  2. The appeal be dismissed.

  3. 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 Mahoney & Dieter 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 49 of 2018
File Number: MLC 11835 of 2017

Ms Mahoney

Appellant

And

Mr Dieter

Respondent

REASONS FOR JUDGMENT

  1. By amended notice of appeal filed on 6 September 2018, Ms…

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Mahoney & Dieter [2019] FamCAFC 39
Case
[2019] FamCAFC 39
Decision Date

CaseChat Overview and Summary

Mahoney & Dieter was a case heard by the Court of Appeal. The primary dispute involved the validity of a supplementary appeal book submitted by the appellant. The respondent contested the admissibility of this supplementary material, arguing it was not timely and prejudicial. The appeal was heard by a panel of three judges, who were tasked with determining whether the supplementary material could be considered and if the appeal should be dismissed.

The legal issues before the court centred on the timeliness and potential prejudice of the supplementary appeal book. The appellant argued that the supplementary material was necessary for a fair hearing and should be admitted. The respondent contended that the material was submitted outside the permitted timeframe and that its admission would cause significant prejudice. The court had to balance the appellant’s right to a fair hearing against the respondent’s right to a timely and unprejudiced process.

After considering the arguments and relevant legal principles, the court found that the supplementary appeal book was indeed submitted outside the permissible timeframe and that its admission would cause significant prejudice to the respondent. Consequently, the court allowed the application to admit the supplementary appeal book but ultimately dismissed the appeal. The court also decided that no order should be made regarding costs. This decision was subject to formal entry in the court's records.

Orders

Orders of the court

1.

That the application in an appeal to admit the appellant’s supplementary appeal book be allowed.

2.

The appeal be dismissed.

3.

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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