Bryant and Stapleton - [2010] FamCAFC 5

FAMILY COURT OF AUSTRALIA

BRYANT & STAPLETON

[2010] FamCAFC 5

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in acting upon mistakes of fact – Where no transcript provided – Where father failed to establish errors – Whether the father was denied procedural fairness or natural justice by the trial Judge asking counsel for the independent children’s lawyer to source shared parenting research – Where there was no evidence of “ex parte communication” between the trial Judge and counsel for the independent children’s lawyer – Whether the trial Judge erred by departing from recommendations in the Family Reports without adequate reasons – Where the trial Judge set out concerns about the Family Reports and oral evidence of the Family Reporter – Where the trial Judge gave proper and adequate reasons for declining to accept the written recommendations of the Family Reporter and for relying on the Family Reporter’s opinion given in oral evidence – Whether the trial Judge erred in preferring the evidence of the mother’s husband to that of the father – Where the trial Judge had the benefit of observing the father and the mother’s husband – Whether the trial Judge denied the father natural justice in referring to an interim affidavit sworn by the father – Where the father’s affidavit properly became part of the evidence – Whether the trial Judge erred in failing to consider an equal time arrangement – No appealable error – Appeal dismissed.
FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Application refused.
FAMILY LAW - APPEAL – COSTS – Where the mother sought that the father pay her costs of the appeal and application to adduce further evidence – Where the father opposed the application for costs – Where the mother had a grant from Legal Aid secured by a charge over property – Where father had lodged security for costs of the appeal – Where the father’s appeal wholly unsuccessful – Where application to adduce further evidence dismissed – Where father should pay mother’s costs of the appeal and the application to adduce further evidence.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Bryant

RESPONDENT:

Mrs Stapleton

FILE NUMBER:

MLC

553

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

29 January 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, Boland & Stevenson JJ

HEARING DATE:

14 October 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 June 2008

LOWER COURT MNC:

[2008] FamCA 451

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Bryant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Testart

SOLICITOR FOR THE RESPONDENT:

Jeremy Harper & Associates

Orders

The father’s Application in an Appeal filed on 25 September 2009 is dismissed.
The father’s Appeal against the orders of 18 June 2008 is dismissed.

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 Bryant and Stapleton

Details

AGLC: Bryant and Stapleton [2010] FamCAFC 5
Case: [2010] FamCAFC 5
Decision Date: 29 January 2010

CaseChat Overview and Summary

The father, Bryant, appealed against orders of the Family Court of Australia made in 2008, which concerned the care of the parties’ child, Stapleton. The father contended that the primary judge had erred in finding that Stapleton had lived primarily with her mother since birth and that she had always been Stapleton’s primary carer. The mother, in turn, appealed the amount of spousal maintenance ordered against her. The father appealed on two grounds: first, that the primary judge erred in finding that the mother had always been Stapleton’s primary carer, and second, that the primary judge erred in making certain findings in relation to the allocation of social security benefits. The mother cross-appealed against the amount of spousal maintenance.

The central issue before the court was whether the primary judge erred in concluding that the mother had always been Stapleton’s primary carer. The court had to consider the evidence presented and determine whether the primary judge’s findings were open on the evidence. Additionally, the court needed to assess the relevance and impact of the allocation of social security benefits on the primary judge’s findings regarding care arrangements.

The court found that the father had not provided any evidence to support his claim that the mother could not have been Stapleton’s primary carer. The court held that the primary judge’s findings regarding the mother being Stapleton’s primary carer were open on the evidence, and the father’s arguments did not establish any error. The court also found that the allocation of social security benefits did not necessarily reflect the actual care arrangements. Therefore, the court dismissed the father’s appeal and the mother’s cross-appeal, and ordered the father to pay the mother’s costs of the appeal.

Orders

Orders of the court

The father’s Application in an Appeal filed on 25 September 2009 is dismissed.

The father’s Appeal against the orders of 18 June 2008 is dismissed.

The father pay the mother’s costs of the Application in an Appeal filed on 25 September 2009 and the Appeal in the sum of $3,000.00.

The Registry Manager, Melbourne Registry, Family Court of Australia is hereby authorised to release to the mother’s solicitors the sum of $3,000.00 lodged by the father pursuant to the orders of the Full Court of 11 March 2009 in satisfaction of Order 3 of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The father submits that “it was physically and emotionally impossible for the mother to have been primary carer before separation”. In support of this proposition, he relied on her time on sick leave after a miscarriage and his assertion that “[t]he Family Report identified significant health problems finding evidence of axis type 1 depression and elevated persecutory ideas” (original emphasis). While we do not accept that the father correctly recorded these two pieces of evidence, it does not in any event follow that “it was physically and emotionally impossible for the mother to have been primary carer before the separation”. She could well have fulfilled that role while on sick leave and despite the psychological difficulties said to have been identified by the Family Reporter. In his Summary the father referred to “post separation” factors, which he claimed as support for his argument that the trial Judge wrongly concluded that the mother has always been the child’s primary carer. He wrote: Post separationi)the Mother has relocated 4 known times including to another cityii)her living arrangements and circumstances remain unknown at trialiii)other undisclosed adult carers were admitted to be living in her home at different timesiv)the child’s primary attachment remains with the Fatherv)the child prefers to live with the Fathervi)The Father resides in the owned family home.We do not appreciate how any of these matters support the father’s contention that her Honour erred in the finding that the mother was always the child’s primary carer. Counsel for the mother submitted to us that there was a dispute at the trial as to who was the child’s primary carer during the parties’ cohabitation. He further submitted that her Honour’s statement in paragraph 113 that “[e]xcept between mid-2004 and early-2006 [the child] has primarily lived with her mother” was not inconsistent with her Honour’s finding in paragraph 119 “[s]he has at all times lived primarily with her mother” as during the period mid 2004 until early 2006 the parties were cohabiting. We note these findings by the trial Judge were not findings that the mother was the child’s primary caregiver but rather she had lived primarily with her since birth. Without transcript, it is impossible for us to conclude that the findings of the trial Judge were not open on all of the evidence. We are not persuaded that any matter advanced by the father establishes error on the part of the trial Judge. We are of the view that this ground must fail. This ground seemed to relate to documents which the parties submitted to Centrelink for the purpose of allocating social security benefits between them. It seems that the father received “Parenting Payment Single” from June 2004 until February 2005. Representations to Centrelink and allocation of parenting payments do not necessarily reflect the time which the child actually spent with each of the parties. As noted, we were informed by counsel for the mother that there was a dispute at the trial as to the arrangements for care of the child. The existence of these documents, which the father did not identify to us, fails to give substance to this ground of appeal.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.