Noble and Kingsley - [2017] FCCA 2309

FEDERAL CIRCUIT COURT OF AUSTRALIA

NOBLE & KINGSLEY

[2017] FCCA 2309

Catchwords:
FAMILY LAW – Parenting application – interaction of r16.05 Federal Circuit Court Rules, Rule in Rice & Asplund and application of best interests principle – where clearly not in best interests of children for application to continue.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit Court Rules 2001, r.16.05

Cases cited:

Barbey & Tuttle (2013) FLC 93-534

Carriel & Lendrum [2015] FLC 93-640

CDW & LVE [2015] WASCA 247

Clifford & Mountford [2006] FMCA Fam 450

Marsden & Winch [2009] FamCAFC 152
MRR v GR [2010] HCA 4

Rice & Asplund (1979) FLC 90-725

SPS & PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

Applicant:

MR NOBLE

Respondent:

MS KINGSLEY

File Number:

WOC 50 of 2013

Judgment of:

Judge Altobelli

Hearing date:

8 September 2017

Date of Last Submission:

8 September 2017

Delivered at:

Wollongong

Delivered on:

13 October 2017

REPRESENTATION

Solicitors for the Applicant:

Stacks Heard McEwan

Solicitors for the Respondent:

Williamson Isabella Lawyers & Public Notaries

ORDERS

The Mother’s Application filed 6 May 2016 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 50 of 2013

MR NOBLE

Applicant

And

MS KINGSLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, X and Y, who are 10 year old twins currently living with their Father. By way of an Amended Application filed in December last year, the children’s Mother seeks to set aside orders made in the Court on an undefended basis on 29 January 2015. These reasons for judgment explain why the Court has declined to set aside the order in question.

Background

On 29 January 2015, the Court made the following orders in the absence of the Mother:
That all previous parenting orders be discharged;
That the father have sole parental responsibility for the children;
That the children live with the father;
That the children spend time with the mother as agreed between the parties, with such time to be on a supervised basis.
The orders were made on an undefended basis so far as the Mother was concerned, but with the consent of both the Father and the Independent Children’s Lawyer. The matter had been listed for final hearing on that date. The Father and the Independent Children’s Lawyer were both represented by Counsel. The Court is prepared to accept the Mother’s contention that the orders were made shortly after 10.00am on the day listed for hearing and that she arrived about 10 minutes later.
By way of background, the matter had been set down for hearing 29 January 2015 by consent on 27 November 2014. The Mother was represented by lawyers at that time. When the Court made the orders now sought to be set aside, the Court had before it an Expert’s Report dated…

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 Noble and Kingsley

Details

AGLC: Noble and Kingsley [2017] FCCA 2309
Case: [2017] FCCA 2309
Decision Date: 13 October 2017

CaseChat Overview and Summary

In the matter of *Noble and Kingsley*, the Federal Circuit Court of Australia, presided over by Judge Altobelli, considered an application by the Mother filed on 6 May 2016. The precise nature of the dispute between the parties, identified as the Mother and the Father (implied by the case name and the nature of the orders), is not detailed in the provided text, but it concerned parenting arrangements.

The central legal issue before the Court was whether to grant the Mother's application. This required the Court to assess the merits of the application in light of the relevant family law principles and the evidence presented by the parties.

Judge Altobelli dismissed the Mother's Application. The reasoning behind this decision, and the specific legal principles applied to reach this outcome, are not elaborated upon in the provided extract.

The Court ordered that the Mother’s Application filed 6 May 2016 be dismissed.

Orders

Orders of the court

The Mother’s Application filed 6 May 2016 be dismissed.

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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