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Nootkamp & Brulja

Nootkamp & Brulja

Case [2023] FedCFamC1A 90 7 June 2023

Best Interests of the Child

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nootkamp & Brulja [2023] FedCFamC1A 90

Appeal from: Nootkamp & Brulja [2023] FCWAM 12

Appeal number(s): NAA 23 of 2023

File number(s): PTW 376 of 2019

Judgment of: ALDRIDGE J

Date of judgment: 7 June 2023

Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – PARENTING – Interim parenting orders – Appeal against orders for sole parental responsibility and injunctions – No error identified – Where insufficient doubt attends the orders sought to be challenged – Where no substantial injustice would result if leave is not granted – Application
for leave to appeal dismissed.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) s 68C

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28

Family Law Regulations 1984 (Cth) reg 19

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Restraining Orders Act 1997 (WA)

Cases cited:
Attia v Health Care Complaints Commission [2017] NSWSC 1066

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Fato v Regione Calabria Pty Ltd [2014] VSC 435

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Marvel v Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101

McKenzie v Picken [2002] WASCA 113

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Rigby & Olsen [2021] FedCFamC1A 46

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SS & AH [2010] FamCAFC 13

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Thompson v Ludwig (1991) 37 IR 437

Number of paragraphs: 111

Date of hearing: 30 May 2023

Place: Perth, delivered in Sydney

The Appellant: Litigant in person

Counsel for the Respondent: Mr Worth

Solicitor for the Respondent: Platinum Legal

Counsel for the Independent Children’s Lawyer: Mr Phillips

Solicitor for the Independent Children’s Lawyer: S V Phillips & Co
ORDERS

NAA 23 of 2023
PTW 376 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR NOOTKAMP

Appellant

AND:
MS BRULJA

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE J

DATE OF ORDER:

7 June 2023

THE COURT ORDERS THAT:
1.The application for leave to appeal from Orders 2 and 12 made on 13 January 2023 is dismissed.
2.The appeal is dismissed.
3.The appellant pay the respondent’s costs fixed in the sum of $5,000 within 90 days.

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

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 Nootkamp & Brulja

Details

AGLC: Nootkamp & Brulja [2023] FedCFamC1A 90
Case: [2023] FedCFamC1A 90
Decision Date

CaseChat Overview and Summary

This is an appeal against interim parenting orders made by a magistrate of the Magistrates Court of Western Australia on 13 January 2023. The parties have four children, born between 2006 and 2013. The father has appealed against the order for sole parental responsibility and the injunctions made against him. The appeal is opposed by the mother and the Independent Children's Lawyer.

The court found that the father had not demonstrated that the making of the injunctions was attended by sufficient doubt to justify a grant of leave. The application for leave to appeal was dismissed. The court examined various grounds of appeal, including procedural fairness, the adequacy of reasons, and the making of unreasonable orders. The court found that the magistrate's reasons were adequate and that there was no error in the making of the orders.

The court held that the interim parenting orders were justified based on the evidence of coercive and controlling behaviour by the father, as well as the need to protect the children's welfare. The court also found that there was no abuse of process in seeking orders under both the Family Law Act and the Restraining Orders Act at the same time.

The appeal and the application for leave to appeal were dismissed. The father was ordered to pay the mother's costs in the sum of $5,000 within 90 days.

Orders