ALBION & GALAWAY - [2021] FamCAFC 29

FAMILY COURT OF AUSTRALIA

ALBION & GALAWAY

[2021] FamCAFC 29

FAMILY LAW – APPEAL – PARENTING – CONSENT ORDER – Where the parties have agreed on the disposition of the appeal – Where this Court is asked to make an order by consent allowing the appeal and making final parenting orders – Where there is a basis for allowing the appeal – Where it is not conceded by the respondent that the primary judge erred in making the orders the subject of the appeal on the basis of the evidence that was before his Honour – Where it is conceded that on the basis of the further evidence this Court has received with the consent of the parties that further evidence undermines the findings made by the primary judge and on which his Honour based the orders appealed – Where the further evidence demonstrates that those orders are erroneous – Where one of the primary issues raised in the proceedings below was the behaviour of the respondent in relation to his use of illicit drugs and his violence – Where the further evidence is the result of a hair follicle drug analysis which records the test as being positive for methamphetamine – Where that is said to undermine the orders because the primary judge’s optimism for the future in relation in particular to the respondent’s drug taking is not borne out – Where this Court cannot make the final parenting orders sought because the appeal only deals with the interim orders and the substantive proceedings continue in the court below – Where the desired outcome sought could have been more easily achieved if the parties had gone back before the primary judge to make the consent orders and simply discontinued the appeal – Appeal allowed – Orders appealed set aside – Proceedings remitted to the primary judge with a view to his Honour making final parenting orders by consent.

Family Law Act 1975 (Cth) s 60CC(2), s 60CC(2A)

Bader & Spinner [2019] FamCAFC 152
Bhatnagar & Riju [2018] FamCAFC 144
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Ganzer & Jelbart [2018] FamCAFC 248
Sielaff & Staatz [2018] FamCAFC 213

APPELLANT:

Ms Albion

RESPONDENT:

Mr Galaway

FILE NUMBER:

ADC

1326

2020

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

1 March 2021

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

24 February 2021

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 September 2020

LOWER COURT MNC:

[2020] FCCA 2621

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Tredrea

SOLICITOR FOR THE APPELLANT:

Carmen Wood & Associates

SOLICITOR-ADVOCATE FOR THE

RESPONDENT:

Mr Harley

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch Pty Ltd

Orders of 24 February 2021

Leave be granted to the appellant mother to rely on her Application in an Appeal and supporting affidavit received by the court on 22 February 2021.
Leave be granted to the appellant mother to adduce the further evidence comprised of the contents of…

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 ALBION & GALAWAY

Details

AGLC: ALBION & GALAWAY [2021] FamCAFC 29
Case: [2021] FamCAFC 29
Decision Date

CaseChat Overview and Summary

Ms Albion, the mother, appeals against the orders of the Federal Circuit Court of Australia, seeking to have the appeal allowed and to have the orders appealed against set aside. The appeal is heard by the Family Court of Australia at Adelaide. The father has not conceded error on the part of the primary judge, but has conceded that further evidence, in the form of a hair follicle drug test result, demonstrates that the orders are erroneous. The mother seeks to have final parenting orders made on the basis of the further evidence, but as the appeal only deals with interim orders, this is not possible. The mother's appeal is allowed and the orders appealed against are set aside, and the proceedings are remitted to the primary judge with a view to his Honour making final parenting orders by consent.

The legal issues before the court were whether the appeal should be allowed by consent, and if so, what orders should be made as a consequence of allowing the appeal. The court was satisfied that there was a basis for allowing the appeal, as the further evidence demonstrated that the orders were erroneous. The court was unable to make final parenting orders because the appeal only dealt with interim orders, but the proceedings were remitted to the primary judge with a view to his Honour making final parenting orders by consent. The outcome could have been more easily achieved if the parties had gone back to the primary judge to make the consent orders, and simply discontinued the appeal.

Orders