Baukham and Pitresso - [2020] FamCAFC 3

FAMILY COURT OF AUSTRALIA

BAUKHAM & PITRESSO

[2020] FamCAFC 3

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Mother seeks expedition of her appeal against final orders relating to the father’s time with the parties’ child – Where the orders are stayed pending appeal – Allegations of family violence – Father supports expedition – The inability of the parties’ young child to spend time with the father in accordance with orders determined to be in her best interests at trial favours expedition – Application granted.

Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A

APPLICANT:

Ms Baukham

RESPONDENT:

Mr Pitresso

FILE NUMBER:

PAC

3597

2016

APPEAL NUMBER:

100

2019

DATE DELIVERED:

9 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

19 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 September 2019

LOWER COURT MNC:

[2019] FCCA 2529

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Rebehy

SOLICITOR FOR THE APPELLANT:

Johnson Horsley Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Lama Family Lawyers

Orders dated 19 December 2019

That the hearing of appeal EA 100 of 2019 be expedited.
That appeal EA 100 of 2019 be listed for hearing before the Full Court at 10.00 am on 12 February 2020.
That Order 7 of the Orders dated 27 November 2019 be varied so that the appellant file and serve a Summary of Argument and List of Authorities on or before 28 January 2020.
That Order 8 of the Orders dated 27 November 2019 be varied so that the respondent file and serve a Summary of Argument and List of Authorities on or before 5 February 2020.

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 Baukham & Pitresso 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 100 of 2019
File Number: PAC 3597 of 2016

Ms Baukham

Applicant

And

Mr Pitresso

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By an Application in an Appeal filed on 5 December 2019, Ms Baukham (“the mother”) seeks to expedite her appeal against certain final parenting orders made in the Federal Circuit Court on 13 September 2019. Mr Pitresso (“the father”) is the respondent to this application. He supports the application for expedition. The application for expedition was granted on the understanding that reasons would be given shortly after. These are those reasons.
The parenting orders…

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 Baukham and Pitresso

Details

AGLC: Baukham and Pitresso [2020] FamCAFC 3
Case: [2020] FamCAFC 3
Decision Date: 9 January 2020

CaseChat Overview and Summary

The application of Ms Baukham ("the mother") to expedite the hearing of her appeal against final parenting orders was heard on 19 December 2019. The appeal concerns orders made on 13 September 2019 in the Federal Circuit Court of Australia by Justice Mortimer. The appeal is against the final parenting orders which provide for the parties' child, X, to live with the mother and to spend time with the father on alternate weekends, school holidays and on special occasions. The mother seeks to appeal those orders and ancillary orders allowing the father to spend time with the child. The appeal was filed on 2 October 2019. On 26 November 2019, on the mother's application, the orders providing for the father to spend time with the child were stayed pending the outcome of the appeal. The father supports the mother's application for expedition. The mother seeks to expedite the hearing of her appeal against the final parenting orders. The primary judge found that it was in the child's best interests for her to spend time with her father. The orders were stayed pending the outcome of the appeal on the condition that the mother prosecutes her appeal diligently and seeks that it be expedited. The mother filed her application on 5 December 2019. The appeal, unless expedited, would not be heard for several months. The father has had no contact with the child since the stay order was made, and further disruptions to his contact with the child will deny the child the opportunity to benefit from his active involvement in her life. The stay operates as a serious impediment to the type of contact that the primary judge was satisfied is in the best interests of the child. The relevant factors justify expedition and the application will be granted. The directions already made in relation to the preparation of the appeal will be varied so as to accommodate an earlier hearing date. Costs will be determined as a question of costs in the appeal.

Orders dated 19 December 2019

1. That the hearing of appeal EA 100 of 2019 be expedited.
2. That appeal EA 100 of 2019 be listed for hearing before the Full Court at 10.00 am on 12 February 2020.
3. That Order 7 of the Orders dated 27 November 2019 be varied so that the appellant file and serve a Summary of Argument and List of Authorities on or before 28 January 2020.
4. That Order 8 of the Orders dated 27 November 2019 be varied so that the respondent file and serve a Summary of Argument and List of Authorities on or before 5 February 2020.

Orders