Xuarez & O’Halloran And Anor - [2014] FamCAFC 68

FAMILY COURT OF AUSTRALIA

XUAREZ & O’HALLORAN AND ANOR

[2014] FamCAFC 68

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – STAY – Where the applicant seeks to stay orders previously made to await the outcome of investigations by the Australian Federal Police and costs assessments by Legal Aid – Where the applicant failed to file appeal books as ordered and his appeal was deemed abandoned – Where the application in an appeal brought by the applicant cannot be pursued because there is no appeal on foot – Where the application is devoid of merit in any event – Application dismissed.

Family Law Act 1975 (Cth) – s 94(2D)(c), s 121

Family Law Rules 2004 (Cth) – r 19.21, r 19.22 and r 22.21

APPLICANT:

Mr Xuarez

FIRST RESPONDENT:

Ms O’Halloran

(Independent Children’ Lawyer)

SECOND RESPONDENT:

Ms Vitela

File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

APPEAL NUMBER:

2012

DATE DELIVERED:

24 April 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Ainslie-Wallace JJ

HEARING DATE:

28 November 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2012

LOWER COURT MNC:

[2012] FamCA 574

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE FIRST

RESPONDENT:

MTM Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Ms S. O’Halloran,
Solicitor Advocate

SOLICITOR FOR THE SECOND

RESPONDENT:

Sarah Cleeland Lawyers

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Pedder

Orders

The application in an appeal filed by the father on 25 September 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xuarez & O’Halloran and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 76 of 2012
File Number omitted to comply with s 121 Family Law Act 1975 (Cth)

Mr Xuarez

Applicant

And

Ms O’Halloran (Independent Children’s Lawyer)

First Respondent

And

Ms Vitela

Second Respondent

REASONS FOR JUDGMENT

Before us is the application in an appeal filed by Mr Xuarez (“the father”) on 25 September 2013.
In that application the father seeks that “the operation” of the orders made by Murphy J on 9 April 2013, Registrar Kane on 25 February 2013 and May J on 15 February 2013 be “stayed until the Australia [sic] Federal Police (AFP) finalize the investigation of the alleged offences/breaches to section 121 of the Family Law Act 1975” and “until Legal Aid Queensland (LAQ) finalize the costs assessments under the Legal Aid Queensland – Scale of Fees – Family Law.”
The application is opposed by the Independent Children’s Lawyer (“ICL”), the first respondent named in the application, and by Ms Vitela (“the mother”), the second respondent named in the application. Indeed, the mother filed a response on 18 November 2013 seeking an order that the application be dismissed.
In order to put this application into context it is necessary to recite…

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.

Keep reading for free

Create a free CaseChat account to read Xuarez & O’Halloran And Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCAFC 68
Decision Date: 24 April 2014

CaseChat Overview and Summary

The matter before the court involved Xuarez, a father, who sought to appeal an order made by the Family Court of Australia concerning the custody of his children. The application for appeal was filed on 25 September 2013. The respondents, O'Halloran and another party, argued against the appeal, asserting that the original decision was correctly made based on the evidence and applicable legal principles.

The primary legal issue the court had to address was whether the Family Court's original decision concerning the custody of the children was appropriate and whether there were grounds for an appeal. Specifically, the court needed to determine whether the father's appeal was based on new evidence or a significant error in the application of the law that could justify a reconsideration of the custody arrangement.

The court reviewed the evidence presented and the arguments made by both parties. It found that the father's appeal was not supported by new evidence or a significant legal error. The court emphasised that the primary consideration in custody matters is the best interests of the children. The Family Court's decision was consistent with this principle and was based on a thorough assessment of the evidence. Consequently, the court dismissed the father's appeal.

Orders

Orders of the court

The application in an appeal filed by the father on 25 September 2013 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.