ATKINSON & ATKINSON - [2017] FamCAFC 266

FAMILY COURT OF AUSTRALIA

ATKINSON & ATKINSON

[2017] FamCAFC 266

FAMILY LAW – APPEAL – INTERIM PARENTING ORDERS – Whether assessment of risk available – Challenges of weight given by the primary judge to the evidence – Whether the primary judge followed the legislative pathway set out in Part VII of the Family Law Act 1975 (Cth) – Whether the primary judge should have appointed a single expert – Whether findings available given the evidence was untested – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Application for order for costs made by the mother and the Independent Children’s Lawyer – Where the appellant has been wholly unsuccessful – Impecuniosity not a bar to an order for costs – Application for costs by the respondent mother granted – Application for costs by the Independent Children’s Lawyer granted.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 117

AMS v AIF (1999) 199 CLR 160
Banks & Banks (2015) FLC 93-637
Ghorbani v Saeed [2013] FamCAFC 167
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Marvel & Marvel (No 2) (2010) 43 Fam LR 348
Metwally v University of Wollongong (No 2) (1985) 158 CLR 447
SCVG & KLD (2014) FLC 93-582
SS & AH [2010] FamCAFC 13

APPELLANT:

Mr Atkinson

RESPONDENT:

Ms Atkinson

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

PAC

4343

2013

APPEAL NUMBER:

2017

DATE DELIVERED:

13 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ryan & Johnston JJ

HEARING DATE:

13 December 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 May 2017

LOWER COURT MNC:

[2017] FamCA 274

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Johnston

SOLICITOR FOR THE APPELLANT:

Kheir Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Fay Rose Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Stolier

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal, fixed in the amount of $4,246.
That the appellant father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the amount of $4,466.

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 Atkinson & Atkinson 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 57 of 2017
File Number: PAC 4343 of 2013

Mr Atkinson

Appellant

And

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: ATKINSON & ATKINSON [2017] FamCAFC 266
Case: [2017] FamCAFC 266
Decision Date: 13 December 2017

CaseChat Overview and Summary

Atkinson & Atkinson involved an appeal against interim parenting orders made in the Family Court of Australia. The appellant, the father, challenged the primary judge's assessment of risk and the weight given to certain evidence, questioning whether the primary judge adhered to the legislative framework established by Part VII of the Family Law Act 1975 (Cth). Additionally, the father argued that the primary judge should have appointed a single expert to evaluate the evidence and questioned whether the findings could be considered reliable given that the evidence was untested.

The court examined the primary judge's assessment of the evidence, considering whether the father's concerns about the weight given to specific testimonies were valid. The court also assessed whether the primary judge followed the appropriate legislative pathway and whether the lack of a single expert affected the reliability of the findings. Ultimately, the court found that the primary judge had adequately considered the evidence and followed the legislative requirements. Consequently, the appeal was dismissed. The court also granted the application for costs by the respondent mother and the Independent Children’s Lawyer, fixing the costs payable by the appellant at $4,246 and $4,466 respectively.

The court's decision emphasised the importance of following the legislative framework when making interim parenting orders and highlighted that the absence of a single expert does not necessarily undermine the reliability of the findings. The court’s ruling underscored that a party's financial status does not preclude an order for costs when the appeal is wholly unsuccessful.

Orders

Orders of the court

That the appeal be dismissed.

That the appellant father pay the respondent mother’s costs of and incidental to the appeal, fixed in the amount of $4,246.

That the appellant father pay the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the amount of $4,466.

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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