BARNSLEY & GAYNOR - [2020] FamCAFC 267

FAMILY COURT OF AUSTRALIA

BARNSLEY & GAYNOR

[2020] FamCAFC 267

FAMILY LAW – APPEAL – PARENTING – Where the appellant father sought equal time – Reasonable practicability – Best interests of the child – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Adequacy of reasons – Decision of the primary judge not plainly wrong – No error in exercise of discretion – No error of fact or law established – Appeal dismissed – Costs ordered against the father in a fixed sum.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Evidence to be adduced only if appeal is allowed and the Full Court re‑exercises the discretion – Application dismissed.

Family Law Act 1975 (Cth) s 94(2A)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133

APPELLANT:

Mr Barnsley

RESPONDENT:

Ms Gaynor

FILE NUMBER:

PAC

2546

2016

APPEAL NUMBER:

EAA

2020

DATE DELIVERED:

6 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

19 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 November 2019

LOWER COURT MNC:

[2019] FCCA 3811

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dura

SOLICITOR FOR THE APPELLANT:

Mackellars Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

The Application in an Appeal to adduce further evidence filed on 2 June 2020 is dismissed.
The appeal against the orders made by a judge of the Federal Circuit Court on 29 November 2019 is dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $10,962.44 within forty-two (42) days of the date these orders.

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 Barnsley & Gaynor 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: EAA 3 of 2020
File Number: PAC 2546 of 2016

Mr Barnsley

Appellant

And

Ms Gaynor

Respondent

REASONS FOR JUDGMENT

On 29 November 2019 a judge of the Federal Circuit Court made final parenting orders in proceedings between Mr Barnsley (“the…

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 BARNSLEY & GAYNOR

Details

AGLC: BARNSLEY & GAYNOR [2020] FamCAFC 267
Case: [2020] FamCAFC 267
Decision Date: 6 November 2020

CaseChat Overview and Summary

The father, the appellant, appealed against the parenting orders made by a judge of the Federal Circuit Court. The mother, the respondent, opposed the appeal. The central issue was the practicability of the father having equal time with the child, the best interests of the child, and the adequacy of the reasons given by the primary judge. The Full Court of the Family Court was required to determine if the primary judge's decision was plainly wrong or if there was an error in exercising the discretion. The court also had to consider whether there was an error of fact or law.

The Full Court held that the primary judge's decision was not plainly wrong and there was no error in exercising the discretion. The Full Court found that the primary judge had given sufficient reasons for the orders made. The Full Court was satisfied that the primary judge had considered all relevant factors and that the decision was based on the best interests of the child. The Full Court noted that the father had not established any error of fact or law in the primary judge's decision. The Full Court also dismissed the father's application to adduce further evidence. The court held that the evidence could only be adduced if the appeal was allowed and the Full Court re-exercised the discretion.

The appeal was dismissed, and the orders made by the primary judge were affirmed. The Full Court ordered the father to pay the mother's costs of and incidental to the appeal in a fixed sum of $10,962.44 within forty-two days of the date of the orders. The Full Court also dismissed the father's application to adduce further evidence. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal to adduce further evidence filed on 2 June 2020 is dismissed.

The appeal against the orders made by a judge of the Federal Circuit Court on 29 November 2019 is dismissed.

The appellant father to pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $10,962.44 within forty-two (42) days of the date these orders.

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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