MARSEY & MARSEY
[2019] FamCAFC 148
•29 August 2019
FAMILY COURT OF AUSTRALIA
| MARSEY & MARSEY | [2019] FamCAFC 148 |
| FAMILY LAW – APPEAL – INTERIM PARENTING – Where the primary judge erred in making an order for sole parental responsibility without allowing the parties the opportunity to make submissions – Appeal allowed in part – Matter remitted for rehearing – Costs certificates granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| APPELLANT: | Mr Marsey |
| RESPONDENT: | Ms Marsey |
| FILE NUMBER: | BRC | 13199 | of | 2018 |
| APPEAL NUMBER: | NOA | 34 | of | 2019 |
| DATE DELIVERED: | 29 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Tree & Hogan JJ |
| HEARING DATE: | 29 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 April 2019 |
| LOWER COURT MNC: | [2019] FCCA 1211 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bunning |
| SOLICITOR FOR THE APPELLANT: | Simonidis Steel Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Downes |
| SOLICITOR FOR THE RESPONDENT: | Trianon Law |
Orders
IT IS ORDERED THAT:
The appeal against the orders of Judge Middleton made on 1 April 2019 be allowed in part.
Orders 1 and 2 made by Judge Middleton on 1 April 2019 be discharged.
The matter be remitted to Judge Middleton.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
NOTATION:
(A)It is noted that the balance of the orders made by his Honour remain in force pending further determination.
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 Marsey & Marsey 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 BRISBANE |
Appeal Number: NOA 34 of 2019
File Number: BRC 13199 of 2018
| Mr Marsey |
Appellant
and
| Ms Marsey |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
By an Amended Notice of Appeal filed on 26 July 2019 Mr Marsey (“the father”) appeals interim parenting orders made by Judge Middleton on
1 April 2019. The orders were made in proceedings between the father and Ms Marsey (“the mother”).
We agree with the arguments proposed in relation to Grounds 1 and 2 that his Honour erred in making an order for sole parental responsibility without giving the parties notice of or an opportunity to make submissions on the question and on that basis the appeal is to be allowed in part.
Tree J
I agree.
Hogan J
I agree.
I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Tree & Hogan JJ) delivered on 29 August 2019.
Associate:
Date: 17 September 2019
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