RESTON & JARRY - [2019] FamCAFC 241

FAMILY COURT OF AUSTRALIA

RESTON & JARRY

[2019] FamCAFC 241

FAMILY LAW – APPEAL – APPLICATION IN A CASE – Where the father sought that the appeal be dismissed on the basis the mother failed to comply with several deadlines – Where the mother’s non-compliance did not prejudice the father – Application dismissed.

FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders providing that the father have sole parental responsibility and supervised time between the mother and the child – Undefended hearing – Where the primary judge erred by failing to explain why the presumption of equal shared parental responsibility was rebutted – Where the primary judge’s reasoning in relation to s 61DA is inadequate – Appeal allowed – Matter remitted for rehearing – Where the orders of the primary judge will continue pending rehearing – Costs certificate granted to the respondent.

Family Law Act 1975 (Cth) ss 60CC, 61DA, s 65DAA and 69ZT
Federal Proceedings (Costs) Act 1981 (Cth) s 6

Bennett and Bennett (1991) FLC 92-191
Goode v Goode [2006] FLC 93-286; [2006] FamCA 1346
Gronow v Gronow (1979) 144 CLR 513; [1976] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48
Sun Alliance Insurance Ltd v Massoud (1990) 94 ALR 11; (1989) VR 8

APPELLANT:

Ms Reston

RESPONDENT:

Mr Jarry

FILE NUMBER:

TVC

196

2019

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

11 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Tree J

HEARING DATE:

13 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2019

LOWER COURT MNC:

[2019] FCCA 1824

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Pack

SOLICITOR FOR THE RESPONDENT:

Ruddy Tomlins & Baxter

Orders

That the Appellant’s Amended Notice of Appeal filed 17 October 2019 be allowed in part.
That the Application in an Appeal filed 6 November 2019 be dismissed.
That the orders of the primary judge made 18 April 2019 be set aside.
That the matter be remitted for rehearing before a Federal Circuit Court judge other than the primary judge.
That notwithstanding order 3, the primary judge’s orders continue to operate until the rehearing under order 4 hereof.
The Court grants to the Respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by him in relation to the appeal.

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 Reston & Jarry has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note:…

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 RESTON & JARRY

Details

AGLC: RESTON & JARRY [2019] FamCAFC 241
Case: [2019] FamCAFC 241
Decision Date: 11 December 2019

CaseChat Overview and Summary

In the matter of Reston & Jarry, the father appealed against the interim parenting orders made by the Federal Circuit Court, which provided for sole parental responsibility and supervised time between the mother and the child. The mother had filed an application to dismiss the appeal, arguing that the father's case should be struck out due to non-compliance with certain deadlines. The father also sought an order that the mother's non-compliance did not prejudice him. The court had to determine whether the mother's non-compliance warranted the dismissal of the appeal and whether the father had been prejudiced by the delay. Furthermore, the court needed to examine the appeal against the interim parenting orders, particularly whether the primary judge had erred in rebutting the presumption of equal shared parental responsibility and whether the reasoning regarding section 61DA of the Family Law Act was adequate.

The Federal Circuit Court found that the mother's non-compliance with deadlines did not prejudice the father, and therefore dismissed the application to strike out the appeal. The court then addressed the appeal against the interim parenting orders. The primary judge's failure to adequately explain why the presumption of equal shared parental responsibility was rebutted and the inadequate reasoning in relation to section 61DA led the court to conclude that the primary judge had erred. Consequently, the appeal against the interim parenting orders was allowed, and the matter was remitted for rehearing before a different Federal Circuit Court judge. The primary judge's orders would remain in effect until the rehearing. The court also granted a costs certificate to the mother, allowing her to seek reimbursement of costs incurred during the appeal.

In summary, the Federal Circuit Court dismissed the application to strike out the appeal but allowed the appeal against the interim parenting orders. The matter was remitted for rehearing, and the costs certificate granted to the mother permits her to seek reimbursement for appeal costs.

Orders

Orders of the court

That the Appellant’s Amended Notice of Appeal filed 17 October 2019 be allowed in part.

That the Application in an Appeal filed 6 November 2019 be dismissed.

That the orders of the primary judge made 18 April 2019 be set aside.

That the matter be remitted for rehearing before a Federal Circuit Court judge other than the primary judge.

That notwithstanding order 3, the primary judge’s orders continue to operate until the rehearing under order 4 hereof.

The Court grants to the Respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by him in relation to the appeal.

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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