Nimmo & Bush - [2016] FamCAFC 274

FAMILY COURT OF AUSTRALIA

NIMMO & BUSH

[2016] FamCAFC 274

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – application to expedite an appeal – where Family Law Rules 2004 (Cth), r 12.10A is relevant to applications to expedite appeals – where grounds for appeal assert procedural unfairness and apprehended bias – where applicant has acted reasonably and without delay – where there are concerns of harm to child – where case should be given priority to detriment of other cases – application allowed.

Family Law Act 1975 (Cth) ss 94(2D)(j), 60CC(2A)

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Mr Nimmo

RESPONDENT:

Ms Bush

FILE NUMBER:

BRC

4853

2016

APPEAL NUMBER:

2016

DATE DELIVERED:

22 December 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

22 December 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 November 2016

LOWER COURT MNC:

[2016] FCCA 3149

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Ramsden Lawyers

SOLICITORS FOR THE RESPONDENT:

Mr Benedetti of Fedorov Lawyers

Orders

That appeal No NA 86/2016 be expedited.
The appeal be heard by the Full Court of the Family Court of Australia in the week commencing 6 March 2017 on a date and at a time during that week to be advised in writing by the Appeals Registrar.
That the parties attend upon the Appeals Registrar forthwith upon the conclusion of the hearing of this Application for the purpose of the Registrar making directions for the said hearing of the appeal.
The costs of and incidental to this application be reserved to the Full Court.

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 Nimmo & Bush 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 86 of 2016
File Number: BRC 4853 of 2016

Mr Nimmo

Applicant

And

Ms Bush

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 28 November 2016, the father of a child aged nearly four filed a Notice of Appeal against orders made by Judge Street. Those orders were made at the conclusion of a final hearing in respect of parenting orders on 15 November 2016.
There are 24 grounds of appeal. The grounds embrace challenges which include assertions of procedural unfairness and apprehended bias on the part of the trial judge, including challenges based on his Honour’s failure to recuse himself. The grounds also embrace challenges to the parenting orders made…

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 Nimmo & Bush

Details

AGLC: Nimmo & Bush [2016] FamCAFC 274
Case: [2016] FamCAFC 274
Decision Date: 22 December 2016

CaseChat Overview and Summary

The applicant, Nimmo, appealed against a decision of the Family Court of Australia, and Bush sought an order to expedite the hearing of the appeal. The appeal related to a Family Law matter, and the grounds for appeal were based on procedural unfairness and apprehended bias. The Family Court of Australia was required to determine whether the application to expedite the appeal should be granted, considering the relevant rules and the circumstances of the case.

The court considered the provisions of Family Law Rules 2004 (Cth), rule 12.10A, which is relevant to applications to expedite appeals. The court also took into account the grounds for appeal, which asserted procedural unfairness and apprehended bias. The applicant had acted reasonably and without delay, and there were concerns of harm to a child. The court determined that the case should be given priority to the detriment of other cases.

The court allowed the application to expedite the appeal. The appeal was to be heard by the Full Court of the Family Court of Australia in the week commencing 6 March 2017. The parties were required to attend upon the Appeals Registrar forthwith upon the conclusion of the hearing of this Application for the purpose of the Registrar making directions for the said hearing of the appeal. The costs of and incidental to this application were reserved to the Full Court.

The final orders were that appeal No NA 86/2016 be expedited, the appeal be heard by the Full Court of the Family Court of Australia in the week commencing 6 March 2017 on a date and at a time during that week to be advised in writing by the Appeals Registrar, the parties attend upon the Appeals Registrar forthwith upon the conclusion of the hearing of this Application for the purpose of the Registrar making directions for the said hearing of the appeal, and the costs of and incidental to this application be reserved to the Full Court.

Orders

Orders of the court

That appeal No NA 86/2016 be expedited.

The appeal be heard by the Full Court of the Family Court of Australia in the week commencing 6 March 2017 on a date and at a time during that week to be advised in writing by the Appeals Registrar.

That the parties attend upon the Appeals Registrar forthwith upon the conclusion of the hearing of this Application for the purpose of the Registrar making directions for the said hearing of the appeal.

The costs of and incidental to this application be reserved to the Full Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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