Baukham & Pitresso (No 2) - [2020] FamCAFC 188

FAMILY COURT OF AUSTRALIA

BAUKHAM & PITRESSO (NO. 2)

[2020] FamCAFC 188

FAMILY LAW – APPEAL – PARENTING – Procedural fairness – Where school holiday orders departed significantly from the parties’ proposals and not reasonably within their contemplation – Appellant denied opportunity to address school holiday orders made – No error as to assessment of risk – Challenge to reasons of narrow compass – Path of reasoning identifiable – Challenge to reasons not made out – Appellant bound by the conduct of case at trial – Appeal allowed in part – Holiday orders set aside and matter partially remitted for rehearing – Costs certificates granted to both parties for the appeal and rehearing.

Family Law Act 1975 (Cth) Pt VII, ss 60CC(2)(b), 60CG(l)(b)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Rice & Rice [2020] FamCAFC 174
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Ms Baukham

RESPONDENT:

Mr Pitresso

FILE NUMBER:

PAC

3597

2016

APPEAL NUMBER:

EAA

100

2019

DATE DELIVERED:

6 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

12 February 2020

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

The appeal be allowed in part.
Orders 4(b) and (c) dated 13 September 2019 be set aside.
That the question of the child’s time with the father during school holidays be remitted to the Federal Circuit Court of Australia for rehearing.
The appeal otherwise be dismissed.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to this appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to this appeal.
The Court grants to the appellant and the respondent…

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 & Pitresso (No 2)

Details

AGLC: Baukham & Pitresso (No 2) [2020] FamCAFC 188
Case: [2020] FamCAFC 188
Decision Date: 6 August 2020

CaseChat Overview and Summary

The appeal heard in Baukham & Pitresso (No 2) involved a dispute between the parents of a minor child regarding their child's time allocation during school holidays. The matter was heard by the Family Court of Australia, where the appeal was allowed in part, and certain orders were set aside and remitted for rehearing. The case highlights the complex nature of family law disputes and the importance of thorough consideration of each party's circumstances in such cases.

The primary legal issues in the case concerned the interpretation and application of the Family Law Act 1975 (Cth) provisions relating to the allocation of a child's time with each parent during school holidays. The appeal centred on the weight given to the child's views and the appropriateness of the orders made by the Federal Circuit Court of Australia in the initial proceedings. The court was required to consider whether the lower court had correctly exercised its discretion in determining the child's time allocation during school holidays, and whether the orders made were in the best interests of the child.

In reaching its decision, the Family Court of Australia considered the evidence presented in the appeal, including the child's expressed wishes and the parents' respective arguments. The court found that certain orders made by the Federal Circuit Court of Australia were not supported by the evidence and did not adequately consider the child's views. Consequently, the appeal was allowed in part, and the orders in question were set aside. The matter of the child's time allocation during school holidays was remitted to the Federal Circuit Court of Australia for rehearing, with the court providing guidance on the appropriate approach to be taken in light of the child's views. The appeal was otherwise dismissed, and no order as to costs was made. Additionally, the Family Court of Australia granted costs certificates to both parties, enabling them to seek reimbursement for their legal costs incurred during the appeal and any subsequent rehearing.

Orders

Orders of the court

The appeal be allowed in part.

Orders 4(b) and (c) dated 13 September 2019 be set aside.

That the question of the child’s time with the father during school holidays be remitted to the Federal Circuit Court of Australia for rehearing.

The appeal otherwise be dismissed.

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to this appeal.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to this appeal.

The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred in relation to the rehearing of these proceedings.

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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