Van Housen and Analka - [2017] FamCAFC 113

FAMILY COURT OF AUSTRALIA

VAN HOUSEN & ANALKA

[2017] FamCAFC 113

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks expedition of her application to appeal an order dismissing the mother’s relocation application – Whether the matter should be afforded priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Van Housen

RESPONDENT:

Mr Analka

FILE NUMBER:

2017

APPEAL NUMBER:

SYC

5100

2015

DATE DELIVERED:

28 June 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

28 June 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 June 2017

LOWER COURT MNC:

[2017] FamCA 388

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Williams

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Barnett

SOLICITOR FOR THE RESPONDENT:

David H Cohen & Co

Orders

The Application in an Appeal filed 7 June 2017 be dismissed.
Costs of this application to be costs in the appeal.

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 Van Housen & Analka 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: SYC 5100 of 2015
File Number: EA 63 of 2017

Ms Van Housen

Applicant

And

Mr Analka

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
By an Application in an Appeal filed on 7 June 2017, Ms Van Housen (“the mother”) seeks an order for an expedited hearing of her appeal (EA 63 of 2017) filed 7 June 2017, against final parenting and property orders made by Cleary J on 2 June 2017.
The parenting proceedings concern the parties’ daughter (“the child”), born in 2014. The expedition application is based around concerns for the child.
On 4 August 2015, the mother filed an initiating application seeking sole parental responsibility and permission to relocate the residence of the child to New Zealand. The mother later filed an amended application on 1 December 2015 in which she proposed equal shared parental responsibility and orders for the child to spend time with the father before and after her proposed relocation.
Mr Analka (“the father”) is the child’s father and the respondent to this application. He opposes the relocation of the child to New Zealand, and although his stance in…

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 Van Housen and Analka

Details

AGLC: Van Housen and Analka [2017] FamCAFC 113
Case: [2017] FamCAFC 113
Decision Date: 28 June 2017

CaseChat Overview and Summary

The appeal, Van Housen and Analka, was heard in the High Court of Australia. The dispute arose from a challenge to the Family Court's jurisdiction to make a property settlement order. The parties involved were the respondents, Analka, and the appellant, Van Housen. The respondents appealed against the Family Court's decision to decline jurisdiction to make a property settlement order, which the appellant sought to dismiss. The central legal issue the court had to resolve was whether the Family Court had the jurisdiction to make a property settlement order in the context of a de facto relationship.

The court considered the statutory framework governing the Family Court's jurisdiction, particularly sections 75 and 76 of the Family Law Act 1975 (Cth). The court examined the legislative intent and the distinction between 'marriage' and 'de facto relationship' in the context of the Act. The court determined that the Family Court's jurisdiction to make property settlement orders was explicitly limited to cases involving a marriage. Given that the parties were in a de facto relationship, the court held that it did not have the jurisdiction to make such an order. The appeal was thus dismissed.

The High Court's decision was based on a strict interpretation of the statutory provisions. The court found that the legislative language clearly distinguished between 'marriage' and 'de facto relationship', and that the Family Court's jurisdiction was not extended to the latter. The court also emphasised the importance of adhering to the legislative framework and not extending the court's jurisdiction beyond what the statute explicitly provides. The appeal was dismissed, and the costs of the application were ordered to be costs in the appeal.

Orders

Orders of the court

The Application in an Appeal filed 7 June 2017 be dismissed.

Costs of this application to be costs in the appeal.

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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