Burton & Churchin & Anor - [2013] FamCAFC 180

FAMILY COURT OF AUSTRALIA

BURTON & CHURCHIN AND ANOR

[2013] FamCAFC 180

FAMILY LAW – APPEAL – CHILDREN – Where the step-mother appeals against orders of the trial judge which provided for the child to live with the aunt in France and that the aunt have sole parental responsibility – Where the child’s father has died and where the child’s mother did not participate in a meaningful way in the proceedings – Where the step-mother’s primary ground of appeal was that the trial judge had wrongly found that s 60CC(2)(a) applied to the relationship between the child and each of the step-mother and the aunt – Where the Full Court held that the trial judge so erred and said that s 60CC(2)(a) is confined to the relationship between a child and its parents – Where the Full Court found that this error coloured everything that followed in the trial judgment – Appeal allowed – Remitted for rehearing.

FAMILY LAW – APPEAL – STAY – Where the aunt appeals against an order staying the parenting orders pending the determination of the appeal against those orders – where the Full Court held it was unnecessary to determine the stay appeal because it had determined the appeal against the parenting orders – Appeal dismissed.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Aldridge & Keaton (2009) FLC 93-421
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Donnell & Dovey (2010) FLC 93-428
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Mulvaney & Lane (2009) FLC 93-404
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT/FIRST RESPONDENT:

Ms Burton

FIRST RESPONDENT/APPELLANT:	Ms Churchin
SECOND RESPONDENT:	Ms Meyers

INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

FILE NUMBER:

SYC

3338

2011

APPEAL NUMBER:

EA
EA

121
131

of
of

2013
2013

DATE DELIVERED:

15 November 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland and Loughnan JJ

HEARING DATE:

4 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 August 2013

29 August 2013

LOWER COURT MNC:

[2013] FamCA 597
[2013] FamCA 741

REPRESENTATION

COUNSEL FOR THE APPELLANT/FIRST RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT/FIRST RESPONDENT:

Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT/APPELLANT:

Mr North SC

SOLICITOR FOR THE FIRST RESPONDENT/APPELLANT:

Delaney Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boyle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hamish Cumming Family Lawyers

Orders

EA 121 of 2013

The application in an appeal to adduce further evidence filed 1 October 2013 be dismissed.
The appeal be allowed.
The orders made on 16 August 2013 be set aside.
The parenting proceedings be remitted for rehearing by a Judge other than the Honourable Justice Johnston.
There be no order for costs.
The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act

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

Case: [2013] FamCAFC 180
Decision Date

CaseChat Overview and Summary

The appeal, brought by Ms Burton, the step-mother, against orders of the trial judge in the Family Court of Australia, was allowed and the orders set aside. The orders had provided for the child to live with the aunt in France and that the aunt have sole parental responsibility. The appeal against a stay order was dismissed. The Full Court found that the trial judge had erred in applying s 60CC(2)(a) of the Family Law Act 1975 (Cth) and that this error coloured everything that followed in the trial judgment. The court found merit in the grounds of appeal challenging the application of s 60CC(2)(a) and the approach to the evidence concerning the child’s primary attachment. The appeal against the parenting orders must succeed and those orders be set aside. It appeared common ground that if the appeal succeeded it would be necessary for there to be a new trial. It also appeared to be agreed that earlier interim orders made on 7 June 2011 which provided for the child to live with the step-mother, who was to have sole parental responsibility, would revive. It was common ground that the costs of the appeal in relation to the stay order should be costs in the main appeal and that no order for costs in favour of any party would be justified, but that both parties and the independent children’s lawyer should receive the appropriate costs certificates for the appeal and the new trial.

Orders