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McNamara & Rose

McNamara & Rose

Case [2007] FamCA 529 1 June 2007

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FAMILY COURT OF AUSTRALIA

McNAMARA & ROSE

[2007] FamCA 529

FAMILY LAW - APPEAL – From decision of Family Court judge – s 118 order – application for permission to start a case – trial Judge refused leave to institute proceedings – no reasonable likelihood of success – appeal dismissed

FAMILY LAW - JURISDICTION – writ of prohibition – writ of mandamus – whether Family Court judge may issue writ against another Family Court judge – no authority to issue

FAMILY LAW - JURISDICTION – writ of certiorari – whether Family Court judge may issue writ to quash orders of another Family Court judge – no authority to issue

FAMILY LAW - JURISDICTION – writ of certiorari – whether Family Court of Australia judge may issue writ to quash orders of a State Magistrates Court – no authority to issue

FAMILY LAW - CONTEMPT – orders by consent – lack of specificity in the orders – orders did not specify time contact was to commence – difficulty in proving contravention – evidence insufficient to establish finding of a flagrant challenge to the authority of the Court – no reasonable likelihood of success

Family Law Act 1975, ss 4(1), 31, 33, 34, 39, 93A(2), 94(2A), 118(1)(c), 112AP(1)(a), 112AP(1)(b)
Crimes Act 1914
Evidence Act 1995, s 128
Judiciary Act 1903, ss 38(e), 39B(1EA)

Neil v Nott (1994) 68 ALJR 509
Watson & Morton [2007] FamCA 497
Zabaneh & Zabaneh (1986) FLC 91-766
Re Attorney-General (Cth); Ex part Skyring (1996) 135 ALR 29
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone theatres (Aust.) Ltd. (1949) 78 CLR 389
Re Ross-Jones; Ex parte Green (1984) FLC 91-555
Warby & Warby (2002) FLC 93-091
Bizannes & Bizannes (1977) FLC 90-313
R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437
Craig v South Australia (1995) 184 CLR 163
Abduramanoski & Abduramanoska (2005) FLC 93-215
M & M [2004] FamCA 843
CDJ v VAJ (1998) FLC 92-828

APPELLANT:

Mr McNamara

RESPONDENT:

Ms Rose

FILE NUMBER:

DGF

2894

2002

APPEAL NUMBER:

2006

DATE DELIVERED:

1 June 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

COLEMAN, MAY & THACKRAY JJ

HEARING DATE:

30 MAY 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 NOVEMBER 2006

LOWER COURT MNC:

[2006] FamCA 1269

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Appellant appeared in person

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as McNamara and Rose.

Orders

That the application to adduce further evidence be dismissed.
That the appeal be dismissed.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 77 of 2006
File Number: DGF 2894 of 2002

Mr McNamara

Appellant

And

Ms Rose

Respondent

REASONS FOR JUDGMENT

1.[Mr McNamara] (“the father”) seeks to appeal against an order made by Carter J on 17 November 2006 dismissing his four applications for leave to institute proceedings.
2.We intend to…

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 McNamara & Rose

Details

AGLC: McNamara & Rose [2007] FamCA 529
Case: [2007] FamCA 529
Decision Date: 1 June 2007

CaseChat Overview and Summary

McNamara & Rose concerned an appeal to the Full Court of the Family Court of Australia from a decision of a single judge of that Court. The primary dispute involved an application for permission to institute proceedings under s 118 of the Family Law Act 1975 (Cth), which the trial judge had refused on the basis that there was no reasonable likelihood of success. The appeal also touched upon the jurisdiction of a Family Court judge to issue writs of prohibition, mandamus, and certiorari, both against another Family Court judge and against a State Magistrates Court.

The Full Court was required to determine whether the trial judge erred in refusing leave to institute proceedings, and more broadly, whether a judge of the Family Court possessed the authority to issue writs of prohibition, mandamus, or certiorari. This included considering whether such writs could be directed to quash orders made by another Family Court judge or by a State Magistrates Court. The Court also considered an application for contempt, which had been dismissed by the trial judge due to the lack of specificity in the consent orders, making it difficult to prove contravention and insufficient to establish a flagrant challenge to the Court's authority.

The Full Court held that a judge of the Family Court did not have the authority to issue writs of prohibition, mandamus, or certiorari. Their Honours reasoned that the Family Court was a statutory court and did not possess the inherent jurisdiction of superior courts to issue such prerogative writs. Consequently, the trial judge had no power to issue the writs sought. Regarding the contempt application, the Court found that the consent orders lacked the necessary specificity regarding the commencement of contact, rendering it impossible to prove a contravention beyond reasonable doubt. The appeal was therefore dismissed.

Orders