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Braithwaite & Braithwaite

Case [2007] FamCA 468 23 May 2007

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FAMILY COURT OF AUSTRALIA

BRAITHWAITE & BRAITHWAITE

[2007] FamCA 468

FAMILY LAW - APPEAL – CHILDREN – Parenting orders – Whether conduct by trial Judge would lead reasonable person to apprehend bias – Consideration of Johnson v Johnson (2000) 201 CLR 488 –Assertions of bias not established – Whether trial Judge erred in exercise of discretion - Whether trial Judge failed to give appropriate weight to relevant factors under ss 60B, 65N and 68F(2) – No appealable error by trial Judge in exercise of discretion –Whether appropriate for trial Judge to rely on expert report – Asserted flaws in methodology of and findings of report writer - Appeal against parenting orders dismissed.

FAMILY LAW - APPEAL – COSTS APPEAL - Whether trial Judge impermissibly took into account matters in the exercise of his discretion – Whether trial Judge erred in making findings about mother’s conduct generally – Consideration of Brott and Joachim (2006) FLC 93-259 – Trial Judge took into account an irrelevant matter in making costs order, namely asserted lack of success of mother in non family law proceedings – Trial Judge awarded costs as a punitive measure against the mother rather than to compensate the father – Whether trial Judge erred in quantum of costs assessed – Underlying foundation upon which trial Judge’s order based not capable of determination on evidence before trial Judge – Appeal against costs orders allowed.

FAMILY LAW - APPEAL – COSTS APPEAL - Re-exercise of discretion – Circumstances justify departure from s 117(1) – Mother should pay two thirds of father’s costs of parenting proceedings on and from 31 July 2002 as agreed or failing agreement as assessed.

FAMILY LAW - APPEAL – COSTS – Mother wholly unsuccessful in respect of appeal against parenting orders – Appropriate for mother to pay father’s costs of appeal as agreed or assessed if costs equal to or less than $5,000.00, or if costs as assessed exceed $5,000.00, costs to be limited to that sum.

Family Law Act 1975 (Cth) (prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)), ss 60B, 65N, 68F(2) and 117
Federal Proceedings (Costs) Act1981 (Cth), ss 6 and 9
Evidence Act1995 (Cth), s 138(1)
Family Law Rules 2004, Chapter 19

A v J (1995) FLC 92-619
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Brott and Joachim (2006) FLC 93-259
Gronow v Gronow(1979) 144 CLR 513; (1979) FLC 90-716
House v The King (1936) 55 CLR 499
I and I (No 2) (1995) FLC 92-625
Johnson v Johnson (2000) 201 CLR 488
Neil v Nott (1994) 68 ALJR 509
Penfold v Penfold (1980) FLC 90-800
Re F: Litigants in Person Guidelines (2001) FLC 93-072

Dr E McInnes, “Parental Alienation Syndrome: A paradigm for child abuse in Australian family law”, in Australian Institute of Criminology, Child Sexual Abuse: Justice Response or Alternative Resolution Conference, Adelaide, 1-2 May 2003

APPELLANT:

Braithwaite

RESPONDENT:

Braithwaite

FILE NUMBER:

NCF

3742

1997

APPEAL NUMBER:

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.

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Details

AGLC: Braithwaite & Braithwaite [2007] FamCA 468
Case: [2007] FamCA 468
Decision Date: 23 May 2007

CaseChat Overview and Summary

This case concerned an appeal by the mother against parenting orders made by a trial judge. The mother also appealed against costs orders made by the same judge. The appeal was heard by Kay, Warnick and Boland JJ.

The primary legal issues before the Full Court were whether the trial judge had demonstrated bias, thereby leading a reasonable person to apprehend such bias, and whether the trial judge had erred in the exercise of discretion regarding the parenting orders. Specifically, the court considered whether the trial judge had failed to give appropriate weight to relevant factors under sections 60B, 65N, and 68F(2) of the relevant legislation, and whether it was appropriate for the trial judge to rely on an expert report despite asserted flaws in its methodology and findings. In relation to the costs orders, the court was required to determine whether the trial judge had impermissibly taken into account irrelevant matters, such as the mother's lack of success in unrelated proceedings, and whether the costs had been awarded punitively rather than for compensation. The court also considered whether the trial judge had erred in the quantum of costs assessed.

The Full Court found that the assertions of bias were not established and that the trial judge had not erred in the exercise of discretion concerning the parenting orders, nor in their reliance on the expert report. However, the court determined that the trial judge had taken into account an irrelevant matter in making the costs order, specifically the mother's lack of success in non-family law proceedings, and had awarded costs punitively. The court also found that the underlying foundation for the trial judge's costs order was not capable of determination on the evidence. Consequently, the appeal against the parenting orders was dismissed, but the appeal against the costs orders was allowed.

The Full Court re-exercised the discretion regarding costs, ordering that the mother pay two-thirds of the father's costs of the parenting proceedings from 31 July 2002. The mother was also ordered to pay the father's costs of the appeal, limited to $5,000 if the assessed costs exceeded that amount, as she was wholly unsuccessful in her appeal against the parenting orders.

Orders