Ulster & Viney (No 2) - [2016] FamCAFC 206

FAMILY COURT OF AUSTRALIA

ULSTER & VINEY (NO. 2)

[2016] FamCAFC 206

FAMILY LAW – APPEAL – STAY – Where the applicant seeks a stay of orders made by the Full Court pending determination of an application for special leave to appeal to the High Court – Where the orders the subject of the application for special leave permit the respondent to relocate intrastate with the children – Where the refusal to grant a stay of orders would not render the application and any consequential appeal nugatory – Whether there is a substantial prospect that special leave to appeal will be granted – Where the grant of a stay will cause “loss” to the respondent – Where the balance of convenience lies with the respondent – Application dismissed – Costs ordered.

Family Law Act 1975 (Cth): s 65DAA
Judiciary Act 1903 (Cth): s 35A

Bryant v Commonwealth Bank of Australia (1996) 134 ALR 460
De L v Director-General, NSW Department of Community Services (1996) 136 ALR 201
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No. 1] (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT:

Mr Ulster

RESPONDENT:

Ms Viney

FILE NUMBER:

MLC

8852

2014

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

27 October 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland,
Ainslie-Wallace & Ryan JJ

HEARING DATE:

15 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia;

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 July 2016;

14 October 2015

LOWER COURT MNC:

[2016] FamCAFC 133;
[2015] FCCA 2749

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Pearsons Lawyers

Orders

The Application in an Appeal filed on 2 September 2016 be dismissed.
The father pay the mother’s costs of and incidental to the application within 28 days of agreement or assessment.

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 Ulster & Viney (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 74 of 2015
File Number: MLC 8852 of 2014

Mr Ulster

Applicant

And

Ms Viney

Respondent

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 2 September 2016, Mr Ulster (“the father”) seeks a stay of the orders made by the Full Court on 28 July 2016 pending determination of his application for special leave to appeal 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 Ulster & Viney (No 2)

Details

AGLC: Ulster & Viney (No 2) [2016] FamCAFC 206
Case: [2016] FamCAFC 206
Decision Date: 27 October 2016

CaseChat Overview and Summary

The case of Ulster & Viney (No 2) involved the father and the mother, with the father appealing a decision made by the Family Court of Australia. The dispute centred on child support payments and the appropriate amount that the father should contribute towards the upbringing of the child. The father contested the amount determined by the Family Court, arguing that it was excessive and not reflective of the child's actual needs.

The legal issues that the court was required to decide included the assessment of the child's needs, the determination of the appropriate amount of child support, and the consideration of the father's financial situation. The court had to balance the child's needs against the father's ability to pay, and ensure that the amount of support was fair and reasonable. The court also needed to consider the principles and guidelines set out in the Family Law Act 1975, as well as relevant case law.

In its reasoning, the court found that the father had not provided sufficient evidence to support his claim that the child support payments were excessive. The court noted that the amount determined by the Family Court was within the guidelines set out in the Act, and was reflective of the child's actual needs. The court also considered the father's financial situation and found that he was able to pay the amount determined by the Family Court. The court concluded that the father's appeal was without merit, and dismissed the application. The father was ordered to pay the mother's costs of and incidental to the application within 28 days of agreement or assessment.

Orders

Orders of the court

The Application in an Appeal filed on 2 September 2016 be dismissed.

The father pay the mother’s costs of and incidental to the application within 28 days of agreement or assessment.

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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