Banham & Banham

Case [2021] FamCAFC 132

FAMILY COURT OF AUSTRALIA

Banham & Banham [2021] FamCAFC 132

Appeal from: Banham & Banham (No.2) [2020] FCCA 2450
Appeal number(s): SOA 81 of 2020
File number(s): MLC 881 of 2015
Judgment of: STRICKLAND J
Date of judgment: 29 July 2021
Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the appellant asserts a denial of procedural fairness – Where the appellant asserts the primary judge relied on documents that were not made available to the parties – Where the references complained of were available to the parties but were not accessed by them – Where in any event a properly conducted trial could not possibly make any difference to how the primary judge dealt with the allegations of family violence and thus to his Honour’s orders – Where there was evidence from other sources that would allow for the same findings to be made – Where the primary judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the primary judge took the evidence of the appellant at its highest – Where the appellant sought a family report – Where to grant that application would have defeated the purpose of the rule in Rice & Asplund – Where there was no merit in any of the Grounds of appeal – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Application dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 69ZW

Family Law Rules 2004 r 19.18(1)(a)
Cases cited:

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Marsden & Winch (2009) 42 Fam LR 1

Rice & Asplund (1979) FLC 90-725

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128

SPS & PLS (2008) FLC 93-363

Stead v State Government InsuranceCommission (1986) 161 CLR 141
Division: Appeal Division
Number of paragraphs: 98
Date of hearing: 11 February 2021
Place: Melbourne by way of video link
Solicitor for the Appellant: Kennedy & Partners
Counsel for the Appellant: Mr Wilson
The Respondent: In Person

ORDERS

SOA 81 of 2020
MLC 881 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS BANHAM

Appellant
AND:

MR BANHAM

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

29 JULY 2021

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 23 December 2020 be dismissed.

2.The appeal be dismissed.

3.The appellant mother pay the respondent father’s costs fixed in the sum of $4,400.

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 Banham & Banham has been approved by the Chief Justice pursuant to s 121(9)(g) of…

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AGLC
Banham & Banham [2021] FamCAFC 132
Case
[2021] FamCAFC 132
Decision Date

CaseChat Overview and Summary

The appeal in Banham & Banham was brought by the mother against the father in relation to parenting orders made by a primary judge of the Family Court of Australia. The mother sought a reversal of the parenting orders made on 28 April 2015, which had been made by consent and required the children to live with the father. The mother also sought a family report and interim orders to address difficulties caused by the pandemic. The father opposed the mother’s applications and the primary judge dismissed them.

The mother appealed on various grounds, including that there had been a denial of procedural fairness and that the primary judge had relied on documents that were not made available to the parties. The court found that the references complained of were available to the parties but were not accessed by them. Even if they had been, a properly conducted trial could not possibly make any difference to how the primary judge dealt with the allegations of family violence and thus to his Honour’s orders. There was evidence from other sources that would allow for the same findings to be made. The primary judge appropriately applied the principle in Rice and Asplund and took the evidence of the appellant at its highest. To grant the application for a family report would have defeated the purpose of the rule in Rice & Asplund. The appeal was dismissed as there was no merit in any of the Grounds of appeal.

The mother filed an Application in an Appeal seeking leave to adduce further evidence deposed to in her affidavit filed on the same date. The father opposed the application, and the court dismissed it. The evidence was nothing more than updating evidence deposing to alleged events occurring subsequent to the date of the orders the subject of the appeal. Thus that evidence certainly could not be received in order to demonstrate appellable error by the primary judge. The mother’s application to adduce further evidence was dismissed.

The court ordered that the appeal be dismissed, and the mother pay the father’s costs fixed in the sum of $4,400. The mother’s Application in an Appeal was also dismissed. The costs order was made pursuant to r 19.18(1)(a) of the Family Law Rules 2004. The mother’s counsel indicated at the hearing of the appeal that if the appeal was dismissed, the mother could not oppose an order for costs being made in favour of the father.

Orders

Orders of the court

SOA 81 of 2020

MLC 881 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS BANHAM

Appellant

AND:

MR BANHAM

Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

29 JULY 2021

THE COURT ORDERS THAT:

1. The Application in an Appeal filed on 23 December 2020 be dismissed.

2. The appeal be dismissed.

3. The appellant mother pay the respondent father’s costs fixed in the sum of $4,400.

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).

Background

Background to the litigation

On 23 December 2020 the mother filed an Application in an Appeal seeking leave to adduce further evidence being that deposed to in her affidavit filed on the same date. On 1 February 2021 the father filed a Response seeking that that application be dismissed.BACKGROUND The parties commenced a relationship in 1998, they married in 2003, and separated on a final basis in 2013. Although the relationship of the parties ceased in March 2013, they remained living in the family home until December 2013. As a result of various health issues which made it difficult for the mother to assist the father in the children’s care as much as she wished to, the parties agreed that the mother would travel to Country D to take a break. The mother left the children with the father, travelling to Country D in August 2013 and remained away for approximately nine weeks. The father travelled to Country E with the children in December 2013, and at that time the mother travelled to Queensland to live with her father. She subsequently re-partnered, and she continues to live with her partner in Brisbane. Her partner has a daughter who lives with them on a week about basis. Following the father’s return from Country E he and the children have continued to reside in Melbourne. The father subsequently re-partnered but that relationship had ceased by the time of the hearing below. The mother commenced proceedings on 9 February 2015 seeking orders that the children live with the father and spend time with her for one half of all school holidays, and for one weekend each month. The father did not oppose this application, and the orders sought by the mother essentially became the final orders made by consent on 28 April 2015. On 6 April 2020 the mother filed an Initiating Application seeking in effect a reversal of the parenting orders made on 28 April 2015; in other words, she sought that the children live with her in Brisbane and spend time with the father for one half of the school holidays and on arranged weekends in Brisbane. The mother also sought interim orders to address difficulties that had developed as a result of travel restrictions imposed following the outbreak of the pandemic, and on 8 April 2020 his Honour made certain interim orders to address these difficulties. In those proceedings the mother also sought that a qualified psychologist be engaged for the purposes of preparing a family report. The father opposed the mother’s applications to reverse the parenting orders and for a family report. On 5 June 2020 the mother filed an Amended Application seeking the same final orders, but seeking amended interim orders including in relation to the family report. She also sought an order pursuant to s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) for the provision of documents. The proceedings returned before his Honour on 9 June 2020, and an order was made pursuant to s 69ZW of the Act requiring the Department of Health and Human Services (DHHS), Victoria Police, and Queensland Police Service provide the Court with information in relation to the children.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit in this Ground.CONCLUSION Having found no merit in any of the Grounds of appeal the appeal must be dismissed.APPLICATION IN AN APPEAL I have not needed to address the Application in an Appeal filed by the mother on 23 December 2020 seeking to adduce as further evidence the contents of her affidavit filed on the same date. That is because that evidence is nothing more than updating evidence deposing to alleged events occurring subsequent to the date of the orders the subject of the appeal. Thus that evidence certainly could not be received in order to demonstrate appellable error by the primary judge. The only possibility of it being received would have been if the appeal was allowed and this Court determined to re-exercise the discretion. However, as can be seen that is not the outcome of the appeal. Accordingly, the application must be dismissed.COSTS At the conclusion of the hearing of the appeal the father, who appeared without legal representation, sought an order for costs if the appeal was dismissed. He had had advice and assistance from a firm of solicitors in responding to the appeal, but his Schedule of Costs filed on 4 February 2021 was inadequate, as was the Schedule filed by the mother on 5 February 2021. Accordingly, an order was made on 11 February 2021 providing for each party to file and serve an amended Schedule of Costs within seven days. The mother complied with that order, and the father did as well, albeit slightly late. The total amount of costs sought by the father is $5,794.84. However, I am not satisfied that all of the work done, or all of the disbursements claimed, were necessary. Thus, I propose to make an order pursuant to r 19.18(1)(a) of the Family Law Rules 2004 that the mother pay the father’s costs fixed in the sum of $4,400. I note that at the hearing of the appeal the mother’s counsel indicated that if the appeal was dismissed the mother could not oppose an order for costs being made in favour of the father.

Ratio Decidendi

Legal Principle Established

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