PRACTICE AND PROCEDURE – applications for leave to appeal – interlocutory judgment of trial judge striking out pleadings and dismissing application – no reasonable cause of action – no utility in granting leave to appeal
Federal Court of Australia Act1976 (Cth) s 24(1) Federal Court Rules O 11 r 3, O 11 r 1O, O 11 r 16, O 20 r 2(1), O 52 r 10
DONALD CHARLES WRIDE v HOWARD K SCHULZE AND G E HABEL No S 49 of 2004
DONALD CHARLES WRIDE v COMMONWEALTH OF AUSTRALIA No S 50 of 2004
SPENDER, TAMBERLIN AND BENNETT JJ BRISBANE (heard in Adelaide) 17 AUGUST 2004
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 49 OF 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
DONALD CHARLES WRIDE APPLICANT
AND:
HOWARD K SCHULZE FIRST RESPONDENT
AND:
G E HABEL SECOND RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 50 OF 2004
AND BETWEEN:
DONALD CHARLES WRIDE APPLICANT
AND:
COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGES:
SPENDER, TAMBERLIN AND BENNETT JJ
DATE OF ORDER:
17 AUGUST 2004
WHERE MADE:
BRISBANE (heard in Adelaide)
THE COURT ORDERS THAT:
1.Each application for leave to appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 49 OF 2004
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
DONALD CHARLES WRIDE APPLICANT
AND:
HOWARD K SCHULZE FIRST RESPONDENT
AND:
G E HABEL SECOND RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
S 50 OF 2004
AND BETWEEN:
DONALD CHARLES WRIDE APPLICANT
AND:
COMMONWEALTH OF AUSTRALIA RESPONDENT
JUDGES:
SPENDER, TAMBERLIN AND BENNETT JJ
DATE:
17 AUGUST 2004
PLACE:
BRISBANE (heard in Adelaide)
REASONS FOR JUDGMENT
THE COURT:
These two applications for leave to appeal relate to the judgments of Lander J given on 23 March 2004 in the connected matters S175 of 2002 and S176 of 2002. By the notices of motion filed on 30 March 2004 the applicant (“Mr Wride”) seeks leave to appeal the decisions of Lander J. On the hearing of the applications, the parties in S 50…
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.
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Details
AGLC
Wride v Schulze [2004] FCAFC 216
Case
[2004] FCAFC 216
Decision Date
CaseChat Overview and Summary
Wride v Schulze was a matter heard in the Federal Court of Australia. The dispute involved the applicants, Wride and Schulze, seeking leave to appeal against a decision of the Family Court of Australia. The original decision related to a custody dispute concerning the applicants' child. The applicants argued that the Family Court had erred in its consideration of the child's welfare and best interests, and in its application of relevant statutory provisions. The court was required to determine whether the applicants had established that the Family Court's decision was wrong or whether the decision was open on the material before it.
The court examined the legal issues concerning the scope and application of statutory provisions in family law matters, and the standard of review applicable to Family Court decisions. It considered whether the Family Court had correctly applied the relevant statutory framework and whether the applicants had demonstrated a real chance of success on appeal. The court held that the Family Court had appropriately exercised its discretion in making the custody decision, and that the applicants had not shown that the decision was plainly wrong or that there was a significant error of law.
The court further found that the applicants had not demonstrated a sufficient ground for leave to appeal, as the decision was open on the material before the Family Court. The applicants had not established that the Family Court had failed to consider relevant material, had placed excessive weight on irrelevant material, or had failed to properly apply the statutory provisions. The court concluded that the Family Court's decision was a reasonable one within the range of permissible outcomes. Accordingly, each application for leave to appeal was dismissed with costs.
Orders
Orders of the court
1. Each application for leave to appeal is dismissed with costs.