NORRIS & MATTHEWS - [2018] FamCAFC 132

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

2015

APPEAL NUMBER:

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…

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 NORRIS & MATTHEWS

Details

AGLC: NORRIS & MATTHEWS [2018] FamCAFC 132
Case: [2018] FamCAFC 132
Decision Date: 17 July 2018

CaseChat Overview and Summary

Norris and Matthews was a case before the Family Court of Australia, where the mother sought to reinstate her appeal against parenting orders that had been made in a prior decision. The mother argued that there were circumstances warranting the reinstatement of her appeal, which had previously been dismissed. The father opposed the application, citing potential prejudice if the appeal were to be reinstated.

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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