FAMILY COURT OF AUSTRALIA
| RYAN & BURNETT | [2008] FamCAFC 72 |
| FAMILY LAW - APPEAL – CHILDREN – PARENTING ORDERS - Whether Federal Magistrate erred by failing to give adequate reasons - Whether Federal Magistrate erred in giving insufficient weight or inappropriate weight to the evidence – Where Federal Magistrate considered the evidence and made appropriate findings of fact – Where appropriate weight placed on evidence - Where appeal against a discretionary judgment - No error of principle established. FAMILY LAW - APPEAL – APPLICATION TO CHANGE CHILD’S NAME - Whether Federal Magistrate erred making order to change the child’s surname – Whether Federal Magistrate applied relevant principles - Discussion of Flanagan & Handcock (2001) FLC 93-074 for factors to consider in name change cases – No error of principle established. FAMILY LAW - APPEAL - INJUNCTIONS – SECTION 68B - Whether Federal Magistrate erred in making an order preventing the child being driven by a restricted licence holder for the purposes of “change-over” – Whether order made without regard to relevant principles – Consideration of s144 of the Evidence Act 1995 (Cth) – Where the injunction granted by the Federal Magistrate was final – Where the injunctive order was not limited to a named person - Where parties did not adduce evidence that the welfare of the child required she be driven by an unrestricted licence holder – Order restraining a restricted licence holder from driving the child set aside – Appeal allowed in part. FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE - Where mother sought to adduce further evidence about the order which provided for change to the child’s surname – Where father argued the evidence was available at the time of the hearing before the Federal Magistrate – Where mother had opportunity to address the name change issue before the Federal Magistrate - Where material contentious – Application of principles discussed in CDJ v VAJ (1998) 197 CLR 172 – Application to adduce further evidence dismissed. |
| Evidence Act 1995 (Cth) - s 144 Family Law Rules 2004 r 22.26(2)(c) |
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172; FLC 92-828
Chapman & Palmer (1978) FLC 92-510
Flanagan & Handcock (2001) FLC 93-074
George & Radford (1976) FLC 90-060
Gronowv Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor (1983) 3 NSWLR 378
Johnson & Page (2007) FLC 93-344
Jones v Toben (2002) 71 ALD 629
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
| APPELLANT: | Ms Ryan |
| RESPONDENT: | Mr Burnett |
| FILE NUMBER: | SYM | 3944 | of | 2006 |
| APPEAL NUMBER: | EA | 150 | of | 2007 |
| DATE DELIVERED: | 2 June 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 21 April 2008 |
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- AGLC
- Ryan & Burnett [2008] FamCAFC 72
- Case
- [2008] FamCAFC 72
- Decision Date
CaseChat Overview and Summary
The court found that the Federal Magistrate had provided adequate reasons for the orders made and had appropriately weighed the evidence. The court reviewed the decision to change the child’s surname, applying the principles from Flanagan & Handcock, and concluded that no error of principle was established. However, the court held that the order preventing the child from being driven by a restricted licence holder was made without regard to relevant principles, as it was not limited to a named person and the parties did not present evidence that the welfare of the child required she be driven by an unrestricted licence holder. Consequently, the appeal was allowed in part, and the injunction was set aside.
The court dismissed the mother’s application to adduce further evidence, finding that she had the opportunity to address the name change issue before the Federal Magistrate, and the material was contentious. The court applied the principles from CDJ v VAJ, concluding that the mother's application did not meet the necessary threshold. In summary, the appeal was allowed in part, the mother's application to adduce further evidence was dismissed, and the injunction was set aside. The court also ordered that the parties could make written submissions regarding costs incurred in relation to the appeal.
Orders
Orders of the court
1.
That the appeal is allowed in part.
2.
That the mother’s application to adduce further evidence is dismissed.
3.
That Order 26 made by Federal Magistrate Kemp on 21 November 2007 is discharged.
4.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.
5.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Eastern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
6.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Eastern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
7.
That each party endorse on the cover sheet of any submissions filed pursuant to Orders 4, 5 and 6, the date upon which a copy of that submission was served on the other party.
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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