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 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 |
| APPELLANT: | Ms Baukham |
| RESPONDENT: | Mr Pitresso |
| FILE NUMBER: | PAC | 3597 | of | 2016 |
| APPEAL NUMBER: | EAA | 100 | of | 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…
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- AGLC
- Baukham & Pitresso (No 2) [2020] FamCAFC 188
- Case
- [2020] FamCAFC 188
- Decision Date
CaseChat Overview and Summary
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
1.
The appeal be allowed in part.
2.
Orders 4(b) and (c) dated 13 September 2019 be set aside.
3.
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.
4.
The appeal otherwise be dismissed.
5.
There be no order as to costs.
6.
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.
7.
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.
8.
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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