Sheen & Paulo - [2007] FamCA 1175

FAMILY COURT OF AUSTRALIA

SHEEN & PAULO

[2007] FamCA 1175

FAMILY LAW - APPEAL - PROCEDURAL ORDERS - ASSERTED FAILURE TO DISMISS APPLICATION ON “THRESHOLD” BASIS - ASSERTED LACK OF PROCEDURAL FAIRNESS - Whether leave to appeal required - Whether Federal Magistrate erred in the exercise of his discretion in refusing change of venue application - Whether Federal Magistrate erred in refusing to appoint an independent children’s lawyer - Whether Federal Magistrate failed to afford procedural fairness to respondent mother - Whether Federal Magistrate erred by failing to determine the matter on a “threshold” basis having regard to the principles enunciated in Rice v Asplund (1979) FLC 90-725 - No appealable error by the Federal Magistrate - Appeal dismissed.

Family Law Act 1975 (Cth), Div 12A, s 18, s 69ZN, s 94AAA
Federal Proceedings (Costs) Act 1981 (Cth)
Family Law Regulations 1984, reg 15A
Family Law Rules 1984
Family Law Rules 2004, r 11.17, r 11.18
Federal Magistrates Court Rules 2001, r 8.01

K and S & V (2001) FLC 93-070; (2001) 27 Fam LR 498
Tems and Tems (1990) FLC 92-169
Watt and Watt (1980) FLC 90-893; (1980) FLC 90-894
Gronow and Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor (1981-1982) 148 CLR 170
Re K (1994) FLC 92-461
Re F Litigants in Person (2001) FLC 93-072
Rice v Asplund (1979) FLC 90-725
Bigg v Suzi (1998) FLC 92-799
Jones v National Coal Board (1957) 2 QB 55; (1957) 2 All ER 155

APPELLANT:

Ms Sheen

RESPONDENT:

Mr Paulo

FILE NUMBER:

SYC

3853

2007

APPEAL NUMBER:

2007

DATE DELIVERED:

28 September 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

19 September 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 August 2007

LOWER COURT MNC:

FMCAfam 667

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Ms Sheen in Person

ADVOCATE FOR THE RESPONDENT:

Mr Paulo in Person

Orders

That the appeal is dismissed.
Each party shall pay their own costs of and incidental to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Sheen v Paulo

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 99 of 2007
File Number: SYC 3853 of 2007

Ms Sheen

Appellant

And

Mr Paulo

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 24 August 2007 Ms Sheen (“the mother”) seeks to appeal Orders 1, 3, 4 and 5 of orders made by Federal Magistrate Altobelli on 2 August 2007. Those orders are as follows:
1.The application to transfer this matter to Federal Magistrates Court at Parramatta is dismissed.
3.Pursuant to section 11F of the Family Law Act 1975 the parties attend a child dispute conference with a family consultant in this Registry on 20 September 2007 at 11am and pursuant to…

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 Sheen & Paulo

Details

AGLC: Sheen & Paulo [2007] FamCA 1175
Case: [2007] FamCA 1175
Decision Date: 28 September 2007

CaseChat Overview and Summary

This matter concerned an appeal to the Supreme Court of Queensland, heard by Boland J. The appeal arose from a dispute between Sheen and Paulo, though the precise nature of their original disagreement is not detailed in the provided text.

The central legal issue before the Court was whether the decision of the lower court should be upheld or overturned. The specific grounds for the appeal are not elaborated upon in the provided excerpt.

Boland J dismissed the appeal. The reasoning behind this decision, and the legal principles applied, are not detailed in the provided text.

Consequently, the Court ordered that the appeal be dismissed and that each party bear their own costs of and incidental to the appeal.

Orders

Orders of the court

That the appeal is dismissed.

Each party shall pay their own costs of and incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

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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