FAMILY COURT OF AUSTRALIA
| BEATON & BEATON | [2020] FamCAFC 297 |
| FAMILY LAW – APPEAL – PARENTING – INTERIM RELOCATION – Appeals against interim relocation orders and dismissal of a stay of those orders – Conduct of proceedings – Nature of the orders made – Interim findings of fact – Weight challenges – Proper consideration given to relevant matters – Findings open on the evidence – Adequate reasons – No error of fact or law established – Appeals dismissed – Costs ordered in a fixed sum. |
| Family Law Act 1975 (Cth) ss 93A, 117 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 House v The King (1936) 55 CLR 499; [1936] HCA 40 Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 Morgan and Miles (2007) FLC 93-343; [2007] FamCA 1230 Robinson HelicopterCo Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Sawant & Karanth [2014] FamCAFC 235 SS & AH [2010] FamCAFC 13 Stringer & Nissen (No. 2) (2019) FLC 93-922; [2019] FamCAFC 185 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Walker & Sampson [2011] FamCAFC 225 |
| APPELLANT: | Mr Beaton |
| RESPONDENT: | Ms Beaton |
| FILE NUMBER: | SYC | 7906 | of | 2019 |
| FIRST APPEAL NUMBER: | EAA | 114 | of | 2020 |
| SECOND APPEAL NUMBER: | EAA | 129 | of | 2020 |
| DATE DELIVERED: | 1 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 29 October 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 14 July 2020; and 24 August 2020 |
| LOWER COURT MNC: | [2020] FCCA 2048; and |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | ATW Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Lethbridge SC |
| SOLICITOR FOR THE RESPONDENT: | De Saxe O’Neill Family Lawyers |
Orders
The appeals against orders of a judge of the Federal Circuit Court made on 14 July 2020 and 24 August 2020 are dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $23,617.77 within twenty-eight (28) days of the date of 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 Beaton & Beaton 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… |
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Details
- AGLC
- Beaton & Beaton [2020] FamCAFC 297
- Case
- [2020] FamCAFC 297
- Decision Date
CaseChat Overview and Summary
In the matter of Beaton & Beaton, the father, the appellant, contested orders made by a judge of the Federal Circuit Court regarding the residence and care of his children with the mother, the respondent. The father sought to appeal the judge's decisions, arguing various grounds of error, including the judge's alleged improper fact-finding and weighing of probabilities in an interim hearing context. The court was required to determine whether the judge's findings were justified and whether the appeal should be allowed.
The legal issues before the court centred on the standard of proof and the appropriate approach to fact-finding in interim hearings, particularly where evidence is untested. The court needed to assess whether the judge's findings were within the permissible bounds of weighing probabilities and making factual determinations, given the nature of interim proceedings. Additionally, the court considered whether the findings were supported by the evidence and whether they were reasonable in the circumstances.
The court examined the judge's approach to fact-finding, noting the principles from previous cases that advocate for circumspection in interim hearings but also allow for weighing probabilities when necessary. The court held that the judge's findings were supported by the evidence and did not exceed the permissible bounds for interim hearings. The court also found that the judge appropriately considered the evidence and did not make impermissible findings of fact. Consequently, the appeals against the orders of the judge were dismissed.
The final orders of the court were that the appeals against the orders made on 14 July 2020 and 24 August 2020 were dismissed, and the appellant father was ordered to pay the respondent mother's costs of and incidental to the appeal, totalling $23,617.77, within twenty-eight days of the date of these orders.
The legal issues before the court centred on the standard of proof and the appropriate approach to fact-finding in interim hearings, particularly where evidence is untested. The court needed to assess whether the judge's findings were within the permissible bounds of weighing probabilities and making factual determinations, given the nature of interim proceedings. Additionally, the court considered whether the findings were supported by the evidence and whether they were reasonable in the circumstances.
The court examined the judge's approach to fact-finding, noting the principles from previous cases that advocate for circumspection in interim hearings but also allow for weighing probabilities when necessary. The court held that the judge's findings were supported by the evidence and did not exceed the permissible bounds for interim hearings. The court also found that the judge appropriately considered the evidence and did not make impermissible findings of fact. Consequently, the appeals against the orders of the judge were dismissed.
The final orders of the court were that the appeals against the orders made on 14 July 2020 and 24 August 2020 were dismissed, and the appellant father was ordered to pay the respondent mother's costs of and incidental to the appeal, totalling $23,617.77, within twenty-eight days of the date of these orders.
Orders
Orders of the court
1.
The appeals against orders of a judge of the Federal Circuit Court made on 14 July 2020 and 24 August 2020 are dismissed.
2.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $23,617.77 within twenty-eight (28) days of the date of 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
In Eaby & Speelman (2015) FLC 93-654 (“Eaby & Speelman”) at [18], the Full Court discussed fact finding in the context of interim hearings where, of course, generally speaking, the evidence is untested and said that findings ought to be couched with great circumspection. However in SS & AH [2010] FamCAFC 13, the majority of the Full Court said:100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected…(Emphasis added) And, of course, even if there were evidentiary controversies, her Honour was nonetheless entitled to make findings on that evidence as Eaby & Speelman makes plain albeit while advocating a cautious approach. Dr C expressed the opinion that the mother would receive psychological benefits from being in Melbourne and having the consistent support of her family, an opinion her Honour accepted in circumstances where there was no countervailing evidence. This ground goes further and particularises an impermissible finding of fact at [30] where her Honour said:30.The separation occurred in circumstances where the mother was in Melbourne visiting her family with the children. She had no advanced notice from the father. She was collected by him from the airport, and once they arrived home told that they were separating, and he had moved out. This has had a significant impact on her. None of this is controversial, the father agreed as to the fact. The mother said it had a significant impact on her. The father did not dispute it. Equally at [31] apparently “impermissible” facts are found when her Honour discussed the mother’s requirement in the immediate post-separation period that the father’s time with the children be supervised. Her Honour said that the mother had “moved through” that requirement, has supported time with the father since then and her Honour noted that it might be expected that she will continue to support the relationship of the children to the father. None of these matters was in dispute. The father’s submissions to the primary judge concentrated on the paucity of time, as the father saw it, that would be available between him and the children if the mother moved to live in Melbourne. Dr F said that he thought Mr D’s optimism that the mother would support the relationship between the children and the father is misplaced, so to this degree it might be said that this was a matter in dispute although I note that Dr F offered the opinion that the mother’s initial requirement that the father’s time with the children be supervised was “unnecessarily restrictive and over-protective”.[12] However, her Honour fell far short of concluding positively that the mother would support the relationship but merely expressed an expectation.[12] Dr F’s affidavit filed 26 June 2020, p.15. This ground has not been made out.
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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