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Meadows & Meadows

Meadows & Meadows

Case [2019] FamCAFC 1 7 January 2019

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FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS

[2019] FamCAFC 1

FAMILY LAW – APPEAL – Appeal against the primary judge’s dismissal of the appellant’s interim parenting applications – Where the parenting orders subject to the appeal are not the operative parenting orders and where the appeal is nugatory - Where, even if this was not the case, the appeal had no merit – Appeal dismissed.

FAMILY LAW – LEAVE TO APPEAL – Where the appellant seeks leave to appeal the primary judge’s order dismissing interim applications for spousal maintenance and injunctions and seeks leave to appeal orders to facilitate the mother’s participation in a psychiatric assessment – Where the primary judge’s decision is not attended by sufficient doubt to warrant it being reconsidered – Where the application for leave is dismissed – Where leave is also refused to challenge the order relating to the former Independent Children's Lawyer.

FAMILY LAW – COSTS – Where the appellant is to pay the Independent Children's Lawyer’s costs which are to be deferred until a property settlement order is made.

Family Law Act 1975 (Cth) ss 68B, 74, 77, 80, 94AA, 114, 117
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) rr 15.41. 15.51

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Helbig & Rowe [2014] FamCAFC 179
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Redman & Redman (1987) FLC 91-805; [1987] FamCA 2
Sullivan & Tyler (No.2) [2013] FamCAFC 136
Tallant and Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPELLANT:

Ms Meadows

RESPONDENT:

Mr Meadows

INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

FILE NUMBER:

PAC

3509

2013

APPEAL NUMBER:

EAA

113

2017

DATE DELIVERED:

7 January 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Watts & Austin JJ

HEARING DATE:

17 August 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 October 2017

LOWER COURT MNC:

[2017] FamCA 907

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Weate & Associates

Orders made 21 December 2018

The appeal against Order 1, as far as it relates to the dismissal of the appellant’s application parenting orders, be dismissed.
The application for leave to appeal against the remainder of Order 1, Order 2 and Orders 4 – 8 (inclusive) be dismissed.
The appellant shall pay the Independent Children’s Lawyer’s costs of and incidental to the appeal and applications for leave to appeal in the fixed sum of $7,381 upon the making of a property settlement order in proceedings between the appellant and the respondent.
Reasons for these orders are reserved.

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 Meadows & Meadows 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…

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: Meadows & Meadows [2019] FamCAFC 1
Case: [2019] FamCAFC 1
Decision Date: 7 January 2019

CaseChat Overview and Summary

The appeal was brought by Ms Meadows against the dismissal of her application for interim spousal maintenance, parenting orders, personal protection orders and property injunctions. Additionally, the appeal challenged the adjournment of the application to discharge the Independent Children's Lawyer. The primary judge dismissed the application and adjourned the discharge application, prompting the appeal against these orders. The appeal was largely dismissed with the court finding that the current operative parenting orders were not the orders the appeal sought to reverse. The appeal against the dismissal of the parenting orders was found to be futile and nugatory as the orders subject to the appeal were no longer the operative parenting orders. The court also found that the appeal against the dismissal of the spousal maintenance, injunctions and other miscellaneous applications lacked merit and no sufficient doubt was present to warrant reconsideration. The court further found that the machinery orders to facilitate the appellant’s psychiatric assessment were not a decree in relation to a child welfare matter and therefore not exempted from the ordinary need for leave to appeal interlocutory decrees. Finally, the appeal against the adjournment of the application to discharge the ICL was found to be incompetent as the order did not determine an identifiable part of the proceedings. In light of the findings, the court made orders that the appellant pay the ICL’s costs in the sum of $7,381.00, with enforcement deferred until a property settlement order is made.

Orders