Atwood & Atwood - [2021] FamCAFC 11

FAMILY COURT OF AUSTRALIA

Atwood & Atwood [2021] FamCAFC 11

Appeal from:	Atwood & Atwood [2019] FamCA 759
Appeal number(s):	EAA 118 of 2019
File number(s):	SYC 3943 of 2014
Judgment of:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
Date of judgment:	12 February 2021
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – No recognised ground of appeal particularised – No appealable error identified – Notation made on the invitation of the parties that the child may approach the mother of his own volition. FAMILY LAW – APPEAL – PROPERTY – Appeal against superannuation splitting order – Undeclared superannuation interests – No evidence adduced at trial or in the appeal – No error demonstrated. FAMILY LAW – APPEAL – COSTS – Appeal against costs order – Financial circumstances – No error identified – Appeal dismissed – No order as to costs.
Legislation:	Family Law Act 1975 (Cth) Pts VII, VIII, ss 75(2), 96AA, 117(2A)
Cases cited:	Atwood & Atwood [2020] FamCAFC 153 House v The King (1936) 55 CLR 499; [1936] HCA 40 Mallory & Mallory [2020] FamCAFC 62
Division:	Appeal Division
Number of paragraphs:	43
Date of hearing:	4 February 2021
Place:	Sydney, delivered in Newcastle
The Appellant:	Litigant in person
The Respondent:	Litigant in person
Counsel for the Independent Children’s Lawyer:	Ms Shea
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

ORDERS

EAA 118 of 2019 SYC 3943 of 2014
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MS ATWOOD Appellant
AND:	MR ATWOOD Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ
DATE OF ORDER:	12 FEBRUARY 2021

THE COURT ORDERS THAT:

The appeal is dismissed.
No order as to costs.

NOTATION:

The parties and the Independent Children’s Lawyer agreed that the parenting orders made by the Family Court of Australia on 20 September 2019 ought to be regarded as being endorsed with the following notation:

The parties agree that notwithstanding Order 3 made on 20 September 2019, [the child] may contact his Mother of his own volition.

Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atwood & Atwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, ALDRIDGE & AUSTIN JJ:

This is an appeal by the mother from some, but not all, orders made by a judge of the Family Court of Australia on 20 September 2019 under both Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The parenting dispute concerned the parties’ only child, who was aged…

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 Atwood & Atwood

Details

AGLC: Atwood & Atwood [2021] FamCAFC 11
Case: [2021] FamCAFC 11
Decision Date: 12 February 2021

CaseChat Overview and Summary

In the matter of Atwood & Atwood, the appellant father challenged the final parenting orders made by the Family Court of Australia, as well as a superannuation splitting order and a costs order. The court was tasked with determining whether the appeal had identified any grounds for reversal or modification of the orders made. The father argued that there were errors in the handling of the case and the decisions made, while the mother contended that the appeal was without merit and should be dismissed.

The legal issues before the court included whether there were any recognised grounds for appeal in relation to the parenting orders, whether there was any evidence to support the contention that there were undeclared superannuation interests, and whether there was any error in the assessment of costs. The court meticulously examined the submissions and evidence provided by both parties, assessing whether any of the identified issues constituted an appealable error or justified the reversal of the orders. The mother submitted that the father had not particularised any recognised ground of appeal and had not demonstrated any error in the primary judge’s determination.

The court found that the appeal did not identify any particularised grounds for challenging the parenting orders. There was no evidence presented to substantiate the claim of undeclared superannuation interests, and the father had failed to demonstrate any error in the costs order. Consequently, the appeal was dismissed as the court found no appealable errors in the primary decision. The court also noted that the child may approach the mother of his own volition, a notation made at the invitation of the parties.

The court ordered that the appeal be dismissed and made no order as to costs.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. No order as to costs.

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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