Albert & Plowman

[2020] FamCAFC 23

FAMILY COURT OF AUSTRALIA

ALBERT & PLOWMAN [2020] FamCAFC 23

FAMILY LAW – APPEAL – PARENTING – Where the appellant mother appeals from final orders providing that the child live with the respondent father, spend time with the mother and restraining contact between the child and the mother’s partner’s son – Where the mother contended that the trial judge failed to give adequate weight to the opinion evidence of the single expert – Where the mother attacked the integrity of the trial judge’s findings – Where the mother argued the orders made by the trial judge were impracticable – Where the mother contended the trial judge placed excessive weight on the child’s allegation of sexual abuse – Where the trial judge did not fail to give adequate weight to the single expert’s evidence in regards to the risk of harm posed to the child by the mother’s partner’s son – Where the findings made were within the trial judge’s regular exercise of discretion – Where the order made by the trial judge was practicable while the mother lived in the area near the child’s residence and where she indicated at trial she would remain living – Where the mother had since chosen to relocate and her remedy is not an appeal against orders properly made by the trial judge – Where the trial judge’s reasons are satisfactory and adequate – Where the injunction precluding the child’s interactions with the mother’s partner’s son was pertinent to the trial judge’s findings about the protective capacity of the mother – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence –Where the father and the Independent Children’s Lawyer opposed the mother’s application – Where the parties agreed for the application to be determined contemporaneously with the appeal – Where the mother’s application was directed, in part, at rectification of an order made by the trial judge which was now suspended due to the mother’s relocation from near the area which the child resides – Where principles of CDJ v VAJ (1998) 197 CLR 172 are applied – Where the proposed additional evidence would not demonstrate error by the trial judge – Application dismissed.

FAMILY LAW – COSTS – Where the appeal is wholly unsuccessful – Where the respondent and the Independent Children’s Lawyer sought costs orders – Where the appellant did not submit her financial circumstances militated against the costs orders sought – Appellant ordered to pay party/party costs to the respondent and the Independent Children’s Lawyer in fixed sums.

Evidence Act 1995 (Cth) s 60
Family Law Act 1975 (Cth) ss 60CC, 65DAA(3), 69ZT, 93A(2), 117(2A)

Bostoi & Bostoi [2011] FamCAFC 132
Browne v Dunn (1893) 6 ER 67
Carpenter & Lunn (2008) FLC 93-377; [2008] FamCAFC 128
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Friscioni & Friscioni [2010] FamCAFC 108
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones…