ADAMS & PETERS - [2009] FamCA 972

FAMILY COURT OF AUSTRALIA

ADAMS & PETERS

[2009] FamCA 972

FAMILY LAW – CHILDREN - Evidence relating to family violence - Separate decision - Allegations of family violence subject of separate hearing - Mother alleges she was subjected to family violence perpetrated by the father during the relationship and after separation - Three apprehended violence orders have been made for the mother’s protection from the father and the mother has also been awarded victims compensations for a psychological injury she sustained allegedly resulting from domestic violence inflicted by the father - Issue estoppel - Whether the orders previously made by the Local Court and the Victims Compensation Tribunal constitute determinations which create estoppels, precluding the father from contesting findings of his perpetration of family violence in the same factual circumstances - Common law principles relating to issue estoppel have limited application in matrimonial proceedings, and particularly such proceedings involving the best interests of children - Any estoppel arising from previous proceedings has no application in the current proceedings and even if the common law principles did prevail no estoppel arises in the circumstances of this case - The behaviour of the father towards the mother did not amount to “family violence” - The Court finds on the evidence that the father does not constitute an unacceptable risk of either physical or emotional abuse to the child

Family Law Act 1975 (Cth)
Family Law Rules 2004 r 10.14, 11.01 (item 2(b)), 16.04

Blair v Curran (1939) 62 CLR 464
Harrison v Schipp (2002) 54 NSWLR 612
Jackson v Goldsmith (1958) 81 CLR 446
Marr (Contracting) Pty Ltd v White Constructions (ACT) Pty Ltd (1991) 104 ALR 181
O’Donel v Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744
Schorel & Schorel (1990) FLC 92-144

APPLICANT:

Ms Adams

RESPONDENT:

Mr Peters

INDEPENDENT CHILDREN’S LAWYER:

Mr Cumming,
Lyons Barnett Kennedy

FILE NUMBER:

NCC

3133

2008

DATE DELIVERED:

13 October 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

23 September 2009 &
24 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Maclean & Curtis Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Allen

SOLICITOR FOR THE RESPONDENT:

Willis & Bowring Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cumming,
Lyons Barnett Kennedy

Orders

No orders are made

IT IS NOTED that publication of this judgment under the pseudonym Adams & Peters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3133 of 2008

MS ADAMS

Applicant

And

MR PETERS

Respondent

REASONS FOR JUDGMENT

Introduction

The parties in these proceedings are locked in dispute over the parenting orders that ought be made in respect of their child, born in March 2006.
The parties had a relatively brief relationship. They began their relationship in about 2002, but did not begin their cohabitation until about 2004. They were married in May 2006 and finally separated…

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: ADAMS & PETERS [2009] FamCA 972
Case: [2009] FamCA 972
Decision Date: 13 October 2009

CaseChat Overview and Summary

In this matter before Justice Austin, the dispute concerned allegations of family violence made by the mother against the father, which were central to proceedings involving the best interests of a child. The mother contended that she had been subjected to family violence by the father during their relationship and following their separation, citing three apprehended violence orders made for her protection and a victims compensation award for psychological injury allegedly sustained as a result of the father's domestic violence.

The primary legal issue before the court was whether previous determinations made by the Local Court and the Victims Compensation Tribunal, in the form of apprehended violence orders and a compensation award, created an issue estoppel that precluded the father from contesting findings of his perpetration of family violence in the current proceedings. The court was required to consider the applicability of common law principles of issue estoppel in family law proceedings, particularly those involving the welfare of children.

Justice Austin reasoned that common law principles of issue estoppel have limited application in matrimonial proceedings, especially where the best interests of children are concerned. The court found that any estoppel arising from the previous proceedings had no application in the current proceedings. Furthermore, even if common law principles were to prevail, the court determined that no estoppel arose in the circumstances of this case. Ultimately, the court found, on the evidence presented, that the father's behaviour did not amount to "family violence" and that he did not constitute an unacceptable risk of either physical or emotional abuse to the child.

No orders were made by the court.

Orders

Orders of the court

No orders are made

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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