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Sheill & McMurr (No 2)

Sheill & McMurr (No 2)

Case [2014] FamCAFC 134

Appeal

Procedural Fairness

Best Interests of the Child

Interlocutory Orders

Family Law

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FAMILY COURT OF AUSTRALIA

SHEILL & MCMURR (NO 2)

[2014] FamCAFC 134

FAMILY LAW – APPEAL – CHILDREN – FINAL OR INTERLOCUTORY ORDERS – Whether the appealed orders were final or interlocutory – Where primary judge adopted procedure referrable to applications for interim orders and described the orders as interim – Licul v Corney (1976) 180 CLR 213 applied – Whether the judgment or order finally disposes of the rights of the parties in the principal case – Where the test is concerned with the legal rather than the practical effect of the judgment – Where the application of the test rests on the nature of the order made and not the nature of the application made to the court – Where it was conceded that the order under challenge could be reversed at the final hearing – HELD – Orders made were interlocutory.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother knew the date of the hearing and the date to file her affidavit material and did not do so –
Where the mother did not attend the hearing – Where procedural fairness requires no more than the opportunity to be heard – Where his Honour was entitled to rely on untested evidence in circumstances where it was an interim hearing and the mother did not file any evidence to cast doubt on the evidence relied on – HELD – No denial of procedural fairness – APPEAL DISMISSED.

Family Law Act 1975 (Cth): ss 94, 60CC
Family Law Regulations 1984 (Cth): R 15A
Family Law Rules 2004 (Cth): rr 5.10, 5.11

Allesch v Maunz (2000) 203 CLR 172
Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 142 ALR 450
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Coombe v Stone [2010] FamCAFC 132
Emamy v Marino (1994) FLC 92-487
Hall v Nominal Defendant (1966) 117 CLR 423
Levis v McDonald (1997) 155 ALR 300
Licul v Corney (1976) 180 CLR 213
Liu v Age Co & Ors [2010] NSWSC 1176
Malouf v Malouf & Ors (1999) 167 ALR 383
McMurr & Sheill [2013] FamCA 821
Police Commissioner v Tanos (1958) 98 CLR 383
Rice v Asplund (1979) FLC 90-725
Tudorv Tudor (1992) FLC 92-273
Vadisanis & Vadisanis [2013] FamCAFC 90

APPELLANT:

Ms Sheill

RESPONDENT:

Mr McMurr

FILE NUMBER:

SYC

5250

2007

APPEAL NUMBER:

2014

DATE DELIVERED:

28 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Kent JJ

HEARING DATE:

16 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 April 2014

LOWER COURT MNC:

[2014] FamCA 327

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Othen

SOLICITOR FOR THE APPELLANT:

Manning Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

The appeal against order 1 of the…

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 Sheill & McMurr (No 2)

Details

AGLC: Sheill & McMurr (No 2) [2014] FamCAFC 134
Case: [2014] FamCAFC 134
Decision Date

CaseChat Overview and Summary

In this case, the Full Court dismissed the appeal brought by the mother, Ms Sheill, against an order made by Foster J on 14 April 2014, which allowed the father, Mr McMurr, to enroll their son D in an autism intervention program at X Public School. The mother had appealed on the grounds that the order was a final order and not interlocutory, that she was denied procedural fairness, and that the primary judge erroneously accepted untested evidence. The court found that the order was interlocutory as it could be reversed at the final hearing or varied at another interim hearing, and the mother had not demonstrated any prejudice caused by the primary judge's decision to proceed with the hearing in her absence. Furthermore, the court held that the primary judge did not err in accepting untested evidence as the mother had not filed any evidence to cast doubt on the evidence relied on by the primary judge.

The court dismissed the appeal and ordered the mother to pay the father's costs of the appeal within one month of agreement or assessment as to quantum. The court also ordered the mother to pay the father's costs of the mother's application in an appeal filed on 5 June 2014, again within one month of agreement or assessment as to quantum.

Orders