FAMILY LAW - Parenting – stay application prior to appeal – Mother’s consistent failure to provide details regarding the Grounds of Appeal (e.g. no reference to any paragraph in the judgment under appeal, or any particulars provided) made the Application almost futile and an abuse of process – Application almost an exercise in a guessing game to work out what the Mother was alleging and the evidence relied upon – long history of contest between the parties including the Mother’s almost incessant need to litigate and to rely upon arguments and material that is patently inaccurate if not false – Application dismissed with costs but which are stayed pending the finalisation of the Appeal.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MARKWELL
Applicant
AND:
MR RANWICK
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 23rd June 2023 by the Applicant be dismissed.
2.The Applicant must pay the costs of the Respondent fixed in the sum of $2,093.62 by no later than 4.00 pm on 11 October 2023.
3.Order 2 is stayed by the Court pending the finalisation of the Appeal. If the Appeal is dismissed, the 90 days for the payment of costs shall run from the date of the dismissal of the Appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section…
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
AGLC
Markwell & Ranwick (No 2) [2023] FedCFamC2F 846
Case
[2023] FedCFamC2F 846
Decision Date
CaseChat Overview and Summary
In Markwell & Ranwick (No 2) the court dismissed the mother's stay application. The mother had appealed the May 2023 judgment, and then sought to stay the orders pending the appeal. The court found that the mother's stay application was procedurally deficient and lacked detail, making it difficult for the father and the court to ascertain what claims the mother was making. The mother's appeal grounds were devoid of particulars or references to the May 2023 judgment, and her affidavit and submissions were brief and lacked comprehensive attention to the details. The court found that the mother's appeal was unlikely to succeed, and that the stay application was an abuse of process. The court ordered the mother to pay the father's costs, but stayed the order pending the outcome of the appeal.