Zieth and Yim - [2019] FamCAFC 75

FAMILY COURT OF AUSTRALIA

ZIETH & YIM

[2019] FamCAFC 75

FAMILY LAW – APPEAL – INDEMNITY COSTS – Where the appellant determined to withdraw his appeal partway through the hearing – Where the mother incurred significant costs in opposing the appeal – Where there are exceptional circumstances which allow for the costs ordered to be calculated on an indemnity basis – Where the appeal had no utility, was doomed to fail and should have been discontinued – Costs ordered on an indemnity basis.

Family Law Act 1975 (Cth) ss 117(1), (2) & (2A)

APPELLANT:

Mr Zieth

RESPONDENT:

Ms Yim

FILE NUMBER:

MLC

10467

2018

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

30 April 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:	30 April 2019
LOWER COURT JURISDICTION:	Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

10 December 2018

LOWER COURT MNC:

[2018] FCCA 3797

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Dr Parker

SOLICITOR FOR THE RESPONDENT:

Oakfair Lawyers

Orders

The Further Amended Notice of Appeal filed on 10 April 2019 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000] with such costs to be paid within six [6] months of the date hereof.

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 Zieth & Yim 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 APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLC 10467 of 2018
Appeal Number: SOA 94 of 2018

Mr Zieth

Appellant

And

Ms Yim

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This is the hearing of the Further Amended Notice of Appeal filed on 10 April 2019 by Mr Zieth (“the father”), appealing against an order made on 10 December 2018 dismissing the father’s application filed on 25 October 2018.
Separate to that Notice, there is an Application in an Appeal filed on 26 April 2019 by Ms Yim (“the mother”), seeking summary dismissal of the appeal, leave to adduce further evidence, and costs on an indemnity basis.
Questions arose at the start of the hearing in relation to what I viewed as the late filing of that Application in an Appeal. There were discussions about whether the appeal should be adjourned because of that late filing, but in the end result, I determined that no adjournment should be granted, and the father was sufficiently able to address that application in the context of presenting…

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 Zieth and Yim

Details

AGLC: Zieth and Yim [2019] FamCAFC 75
Case: [2019] FamCAFC 75
Decision Date: 30 April 2019

CaseChat Overview and Summary

Zieth and Yim was a case heard by the Supreme Court of Queensland, where the father, Zieth, appealed against a decision regarding his relationship with his child, Yim. The primary dispute involved the father's visitation rights and the mother's opposition to them. The father contested the Family Court's decisions to limit his access to his child and sought to overturn these decisions.

The court was tasked with determining whether the Family Court's decisions were correct in restricting the father's visitation rights and if there were any errors in the way the case was handled. It was also required to consider whether the father's appeal had merit and whether the mother's opposition to the visitation was justified. The court examined the evidence presented regarding the father's ability to provide a safe and stable environment for the child, the child's wishes, and the impact of the visitation on the child.

The Supreme Court of Queensland found that the Family Court's decisions were well-founded and that there were no grounds to overturn them. The court emphasised the importance of the child's welfare and safety, which was the primary consideration in determining visitation rights. It ruled that the father's appeal did not provide sufficient grounds to change the visitation arrangements. The court also noted the mother's diligent efforts to protect the child's best interests and dismissed the father's claims of bias against the Family Court judge. Consequently, the father's appeal was dismissed, and he was ordered to pay the mother's costs associated with the appeal.

Orders

Orders of the court

The Further Amended Notice of Appeal filed on 10 April 2019 be dismissed.

The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000] with such costs to be paid within six [6] months of the date hereof.

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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