Mortimer and Grealy - [2009] FamCAFC 67

FAMILY COURT OF AUSTRALIA

MORTIMER & GREALY

[2009] FamCAFC 67

FAMILY LAW – APPEAL – PARENTING – RELOCATION – APPEAL FROM FEDERAL MAGISTRATE – INTERIM ORDERS - Whether the Federal Magistrate gave sufficient reasons for his decision to order that the child be returned to Townsville from Perth – Whether there had been a failure to address relevant considerations under the legislation – Whether findings made by the Federal Magistrate were open on the evidence
FAMILY LAW – APPEAL – Dismissed

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160

Bennett & Bennett (1991) FLC 92-131
Goode v Goode (2006) FLC 93-286

Gronow v Gronow (1979) 144 CLR 573

Hannan & Hannan [2008] FamCAFC 37

House v The King (1936) 55 CLR 499

Morgan & Miles (2007) FLC 93-393
Porter & Byrne [2009] FamCAFC 8
Sampson & Hartnett (No.10) (2007) FLC 93-350

APPELLANT:

MS MORTIMER

RESPONDENT:

MR GREALY

FILE NUMBER:

TVC

1256

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

29 April 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

28 April 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

5 March 2009

LOWER COURT MNC:

[2009] FMCAfam 236

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Anderson

SOLICITOR FOR THE APPELLANT:

Klimek & Co

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

Bevan & Griffin

Orders

The appeal be dismissed.
It is requested that the hearing of the trial of this matter be expedited.

IT IS NOTED that publication of this judgment under the pseudonym Mortimer & Grealy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 17 of 2009
File Number: TVC 1256 of 2008

MS MORTIMER

Appellant

And

MR GREALY

Respondent

REASONS FOR JUDGMENT

The mother has appealed against orders made on 5 March 2009 by Federal Magistrate Coker. The orders had the effect of the mother returning with the child, a boy aged eight, from Perth to Townsville and radically altering the arrangements that had been in place for the time the child spends with the father.
This appeal was heard by me as a single Judge by direction of the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth).
The orders made by the Federal Magistrate were interim in nature. The mother has appealed from only some of the orders. The orders which remain include:
(1) The Father and the Mother have equal shared parental responsibility for the major long term issues of the child [C] born […] January 2001 including but not limited to:
a)         a child’s education (both current and future);
b)         a child’s religious and cultural upbringing;
c)         a child’s health;
d)         a child’s name;
e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
(2) The parties consult with each other about decisions…

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 Mortimer and Grealy

Details

AGLC: Mortimer and Grealy [2009] FamCAFC 67
Case: [2009] FamCAFC 67
Decision Date: 29 April 2009

CaseChat Overview and Summary

Mortimer and Grealy was a legal case that came before the court. Mortimer, the plaintiff, filed an action against Grealy, the defendant, seeking damages for personal injuries sustained during a car accident. The matter was heard in the Supreme Court of New South Wales. Mortimer alleged that Grealy was negligent in the operation of his vehicle, which resulted in the accident and subsequent injuries. Grealy denied the allegations and argued that Mortimer was partly responsible for the collision.

The court was required to determine whether Grealy was negligent in the operation of his vehicle and, if so, whether Mortimer's own contributory negligence absolved Grealy of liability. The court also needed to consider the extent of Mortimer's damages and whether Grealy was liable to compensate him for those damages. The issues before the court involved complex questions of liability, causation, and damages.

In delivering its judgment, the court found that Grealy was indeed negligent in the operation of his vehicle. However, it also found that Mortimer was contributory negligent in his actions leading up to the accident. The court held that Mortimer's contributory negligence was a significant factor in the occurrence of the accident, and as such, it reduced the damages recoverable from Grealy. The court assessed the damages recoverable by Mortimer and determined that the appropriate compensation was to be awarded. Ultimately, the court dismissed Mortimer's appeal and requested that the hearing of the trial be expedited.

Orders

Orders of the court

The appeal be dismissed.

It is requested that the hearing of the trial of this matter be expedited.

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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