Wride v Schulze

Case [2004] FCAFC 216


FEDERAL COURT OF AUSTRALIA

Wride v Schulze [2004] FCAFC 216

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

Meredith v Commissioner of Taxation (2002) 192 ALR 418 referred to
Re Luck (2003) 203 ALR 1 referred to
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 cited
Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988)
18 FCR 424 cited
Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 104 ALR 165 referred to
General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 referred to
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 referred to
Dare v Pulham (1982) 148 CLR 658 referred to
National Mutual Property Services (Australia) Pty Ltd v Citibank Savings Ltd (1995)
132 ALR 514 referred to

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:

  1. 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…

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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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

SPENDER, TAMBERLIN AND BENNETT JJ

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Ratio Decidendi

Legal Principle Established

Established by: SPENDER, TAMBERLIN AND BENNETT JJ

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