THEOPHANE & HUNT - [2013] FamCAFC 68

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT [2013] FamCAFC 68

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made an order purportedly pursuant to Division 12A of the Family Law Act 1975 (Cth) restraining by injunction each of the parties from commencing any parenting or enforcement proceedings without the leave of the court – Appealable error established – Held Division 12A does not empower the court to make such an order – Appeal allowed to that limited extent.

FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant father sought to adduce further evidence – Held documents which were the subject of the application, if admitted, would not have shown error or led to a different result – Application dismissed.

Family Law Act 1975 (Cth)

Bennett v Bennett (2001) FLC 93-088
Fargo & Lark [2011] FamCA 238
MRR v GR (2010) 240 CLR 461

APPELLANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 1089 of 2007

APPEAL NUMBER: NA 98 of 2011

DATE DELIVERED: 1 May 2013

PLACE DELIVERED: Brisbane

DATE HEARD: 3 September 2012

PLACE HEARD: Brisbane

JUDGMENT OF: Faulks DCJ, Finn & Ainslie-Wallace JJ

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT ORDERS MADE: 5 December 2011

LOWER COURT REASONS DELIVERED: 20 December 2011

LOWER COURT MNC: [2011] FamCA 968
REPRESENTATION

FOR THE APPELLANT: Mr Theophane in person

COUNSEL FOR THE RESPONDENT: Mr Page SC and Mr Williams of Counsel

SOLICITOR FOR THE RESPONDENT: O’Reilly Stevens Bovey

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:
Ms McArdle

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:
Ms Susan Gray
Orders
(1)The appeal be allowed to the limited extent provided by Order 2 of these orders.
(2)Order 26 of the orders made on 5 December 2011 by the Honourable Justice Benjamin be set aside.
(3)The appeal be otherwise dismissed.
(4)The application by the father to adduce further evidence be dismissed.
(5)There be no order for costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt 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 98 of 2011
File Number: CSC 1089 of 2007

Mr Theophane
Appellant
And

Ms Hunt
Respondent
REASONS FOR JUDGMENT
1.Mr Theophane (“the father”) appeals against interim orders made by Benjamin J on 5 December 2011 in relation to the child X (“the child”) of his relationship with Ms Hunt (“the mother”). The child was born in September 2006. The mother and father entered into a relationship in December 2005 and separated in about September 2007.
2.The mother entered into another relationship in 2008 and she remarried in 2011. She and her husband have a child, Z, who was born in 2010.
3.On 5 December 2011 his Honour discharged all previous parenting orders and ordered inter alia that both parties be restrained from relocating the child’s place of residence from…

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 THEOPHANE & HUNT

Details

AGLC: THEOPHANE & HUNT [2013] FamCAFC 68
Case: [2013] FamCAFC 68
Decision Date

CaseChat Overview and Summary

This appeal concerns the outcome of parenting proceedings between Mr Theophane (the father) and Ms Hunt (the mother). The child of the relationship is X, who was born in 2006. The mother and father separated in 2007 and the mother has been the primary carer for X until her arrest in September 2011 for the attempted murder of the father. Since 2007 the parties have been engaged in acrimonious litigation in the Family Court and other courts. The father appealed against orders made by Benjamin J on 5 December 2011 which, amongst other things, restrained the parties from commencing further parenting or enforcement proceedings without leave of the court. The Full Court allowed the appeal to the limited extent that the injunction made by the trial Judge was set aside. The Full Court was of the view that Division 12A of the Family Law Act 1975 (Cth) did not empower the trial Judge to make the injunction. The appeal was dismissed in all other respects. The father's application to adduce further evidence in the appeal was dismissed. The Full Court did not consider that the documents, if admitted, would have shown error or led to a different result.

Orders