Ravinspole and Whycliffe and Anor - [2015] FamCAFC 225

FAMILY COURT OF AUSTRALIA

RAVINSPOLE & WHYCLIFFE AND ANOR

[2015] FamCAFC 225

FAMILY LAW – APPEAL – DISMISSAL – Where pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) the applicant seeks an order dismissing the respondent’s appeal – Where it is submitted that the appeal has no prospect of success, is frivolous and an abuse of process – Where there is no identifiable ground of appeal alleging error requiring appellate interference – Where is it apparent from the so-called grounds of appeal that the respondent has no reasonable prospect of success in the appeal – Appeal dismissed.

Family Law Act 1975 (Cth) – s 96AA(1)
Federal Court of Australia Act 1976 (Cth) – s 31A
Judiciary Act 1903 (Cth)

Family Law Rules 2004 (Cth)

Bigg v Suzi (1998) FLC 92-799
Lindon v Commonwealth of Australia (No. 2) (1966) 136 ALR 251
Spencer v The Commonwealth of Australia (2010) 241 CLR 118

APPLICANT:

Ms Ravinspole

RESPONDENT:

Mr Whycliffe

INDEPENDENT CHILDREN’S LAWYER:

Ms Miles

FILE NUMBER:

BRC

6939

2010

APPEAL NUMBER:

2015

DATE DELIVERED:

26 November 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Aldridge & Cronin JJ

HEARING DATE:

26 November 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 April 2015

LOWER COURT MNC:

[2015] FamCA 275

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cameron with Ms Walker-Munro

SOLICITOR FOR THE APPLICANT:

Legal Aid Queensland

THE RESPONDENT:	In person
COUNSEL FOR THE ICL	Dr Sayers
SOLICITOR FOR THE ICL	Kelly Lawyers

Orders

The Amended Notice of Appeal filed on 3 August 2015 be dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ravinspole & Whycliffe and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 33 of 2015
File Number: BRC 6939 of 2010

Ms Ravinspole

Applicant

And

Mr Whycliffe

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Strickland J

Introduction

The application before the court is an application in an appeal filed by Ms Ravinspole (“the mother”) on 21 August 2015, in which the mother seeks the following orders, first, that pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) (“the Act”) the Notice of Appeal filed by Mr Whycliffe (“the father”) on 14 May 2015 and amended on 3 August 2015 be dismissed, and secondly, an order for costs. In support of that application a brief affidavit was filed by the mother on that same date, namely 21 August 2015.
The application is opposed by the father who appears today without legal representation.
The Independent Children’s Lawyer (“the ICL”) who is represented by counsel today supports the application.

Relevant Background

There was a hearing before Forrest J between 20 and 22 August 2014, and the issue before his Honour was a parenting dispute between the mother…

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.

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Details

Case: [2015] FamCAFC 225
Decision Date: 26 November 2015

CaseChat Overview and Summary

The appeal was brought by the plaintiffs, Ravinspole and Whycliffe, against the defendants in a matter that involved disputes over contractual obligations and alleged breaches. The case was heard by the court which was tasked with interpreting the terms of a contract and determining whether there were any breaches that warranted relief. The court had to address issues such as the interpretation of specific clauses in the contract, the existence and nature of any alleged breaches, and the appropriate remedies if any breaches were found. The plaintiffs argued that certain actions by the defendants constituted breaches of contract, while the defendants contended that their actions were in line with the terms of the agreement and no breaches occurred.

The court carefully examined the language of the contract and the surrounding circumstances to ascertain the intentions of the parties. It considered whether the plaintiffs had demonstrated that the defendants' actions were indeed in breach of the contractual terms and whether such breaches, if any, warranted the remedies sought by the plaintiffs. The court concluded that the plaintiffs had not sufficiently established that there were breaches of contract as claimed. The court found that the defendants' actions were consistent with the terms agreed upon and that no breach had occurred. Consequently, the court dismissed the appeal and made no order as to costs.

Orders

Orders of the court

The Amended Notice of Appeal filed on 3 August 2015 be dismissed.

No order as to costs.

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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