WHITBY & ZELLER - [2016] FamCAFC 140

FAMILY COURT OF AUSTRALIA

WHITBY & ZELLER

[2016] FamCAFC 140

FAMILY LAW – APPEAL – Where the trial judge made orders in 2014 for the re-introduction of the father to the child – Where these orders were affirmed by the Full Court decision in Whitby & Zeller (No 2) [2014] FamCAFC 239 – Where the orders under appeal were made to facilitate these 2014 orders – Where no appealable error was demonstrated – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made.

Family Law Act 1975 (Cth) s 117

Metwally v University of Wollongong (1985) 60 ALR 68
Whitby & Zeller [2014] FamCAFC 199
Whitby & Zeller (No 2) [2014] FamCAFC 239

APPELLANT:

Ms Whitby

RESPONDENT:

Mr Zeller

INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

FILE NUMBER:

SYC

2228

2011

APPEAL NUMBER:

107

2016

DATE DELIVERED:

3 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

28 July 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

NA
Orders made on 18 July 2016

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:	In person
SOLICITOR FOR THE RESPONDENT:	Rafton Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Partners Lawyers

Orders made on 28 July 2016

The appeal EA 107 of 2016 against the orders of Judge Monahan made on 18 July 2016 is dismissed.
The appellant to pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $2,000 within forty-two (42) days of these orders.
The appellant to pay the respondent father’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within forty-two (42) 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 Whitby & Zeller 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 SYDNEY

Appeal Number: EA 107 of 2016
File Number: SYC 2228 of 2011

Ms Whitby

Appellant

and

Mr Zeller

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Notice of Appeal filed on 20 July 2016, Ms Whitby (“the mother”) appeals against orders made by Judge Monahan on 18 July 2016. The orders concern the parties’ son C (“the child”) who was born in 2008. Mr Zeller (“the father”) resists the appeal as does the Independent Children's Lawyer.
Further, by Application in an Appeal filed on 20 July 2016, the mother sought…

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 WHITBY & ZELLER

Details

AGLC: WHITBY & ZELLER [2016] FamCAFC 140
Case: [2016] FamCAFC 140
Decision Date: 3 August 2016

CaseChat Overview and Summary

The appeal in question involved the parties from a family law matter, with the father seeking to appeal certain orders made by the court. The dispute arose out of a decision made in 2014 where the trial judge had ordered the re-introduction of the father to the child. This decision was subsequently affirmed by the Full Court in the case of Whitby & Zeller (No 2) [2014] FamCAFC 239. The orders currently under appeal were made to facilitate the 2014 orders and the father argued that there had been an appealable error in their making.

The legal issues before the court were primarily concerned with whether the trial judge had made an error in law or otherwise in making the orders, and whether these orders were appropriate in the circumstances. The court had to consider whether the father had demonstrated any appealable error in the making of these orders, particularly given that they were made to facilitate the 2014 orders which had already been affirmed by the Full Court. The court also had to consider the costs implications of the appeal, given that the father's appeal was wholly unsuccessful.

The court found that no appealable error had been demonstrated by the father in relation to the orders under appeal. The court held that the orders were appropriate in the circumstances, particularly given that they were made to facilitate the 2014 orders which had already been affirmed. The court also found that the appeal was wholly without merit and that the father should be liable for the costs of the appeal. The appeal was therefore dismissed and costs orders were made against the father.

In summary, the court found that the father had failed to demonstrate any appealable error in the making of the orders under appeal, and that the orders were appropriate in the circumstances. The appeal was dismissed and costs orders were made against the father.

Orders