FAMILY COURT OF AUSTRALIA
| NORRIS & MATTHEWS | [2018] FamCAFC 132 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the mother seeks reinstatement of her appeal against parenting orders – Whether there is a relevant circumstance which would cause the case to be reinstatement – Where there may be prejudice to the father – Where application is dismissed. |
| Family Law Act 1975 (Cth) s 97(3) Family Law Rules 2004 (Cth) |
| Batey-Elton & Elton [2009] FamCAFC 101 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Norris |
| RESPONDENT: | Mr Matthews |
| FILE NUMBER: | NCC | 2226 | of | 2015 |
| APPEAL NUMBER: | EA | 86 | of | 2017 |
| DATE DELIVERED: | 17 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 17 July 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2017 |
| LOWER COURT MNC: | [2017] FamCA 461 |
REPRESENTATION
THE APPELLANT: | In person (by telephone link) |
| SOLICITOR FOR THE RESPONDENT: | Ms Heslop of Oliver Campbell Heslop Solicitors (by telephone link) |
Orders
(1)The application for reinstatement of Appeal EA 86 of 2017 is dismissed.
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 Norris & Matthews 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 SYDNEY |
Appeal Number: EA 86 of 2017
File Number: NCC 2226 of 2015
| Ms Norris |
Applicant
and
| Mr Matthews |
Respondent
REASONS FOR JUDGMENT
Ms Norris (“the mother”) seeks that her appeal against parenting orders made by Austin J on 30 June 2017 be reinstated, it having been deemed abandoned by operation of Rule 22.44 of the Family Law Rules 2004. Mr Matthews (“the father”) opposes the mother’s application. Property settlement proceedings between the parties while commenced have not been concluded. The mother is an undischarged bankrupt and her property in Australia has vested in the Trustee in Bankruptcy.
The parenting orders relate to the child of the mother and the father who was born in 2010. The orders relevantly provided that the father have sole parental responsibility for the child and that the child live with him. A notation to the orders explained that the orders “intentionally make no provision for the child to spend time or communicate with the mother” and that if, when and how such time or communication would occur were decisions that the father would make by reason of his having sole…
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- NORRIS & MATTHEWS [2018] FamCAFC 132
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- [2018] FamCAFC 132
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CaseChat Overview and Summary
The central legal issue before the court was whether there were sufficient grounds to reinstate the appeal, considering the potential for prejudice to the father. The court had to balance the mother’s right to appeal against the interests of the father and the child, ensuring that any decision did not unfairly disadvantage any party involved.
In reaching its decision, the court examined the nature and extent of any prejudice that might arise from the reinstatement of the appeal. The court found that the mother had not demonstrated any exceptional circumstances that would justify setting aside the prior decision to dismiss the appeal. Additionally, the court determined that allowing the appeal to proceed could cause significant prejudice to the father, who had already invested considerable time and resources in defending against the original appeal. The court concluded that the interests of justice were best served by dismissing the application for reinstatement.
Consequently, the application for reinstatement of the appeal was dismissed, and the prior decision to dismiss the appeal remained in effect. This outcome ensured that the status quo was maintained, preventing any unnecessary disruption to the established parenting arrangements.
Orders
Orders of the court
(1) The application for reinstatement of Appeal EA 86 of 2017 is dismissed.
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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