Casano and Antipov (No. 2) - [2017] FamCAFC 234

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV (NO. 2)

[2017] FamCAFC 234

FAMILY LAW – APPEAL – Parenting – Family Violence – Best interests of the child – Whether the father was denied procedural fairness – Whether adverse findings made on issues not raised in the case – Whether the reasons given by the primary judge were adequate – Challenges to weight given to evidence – Whether an order for supervised time rather than no time should have been made – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Application for costs granted.

Family Law Act 1975 (Cth)

A v A (1998) FLC 92-800
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Kioa v West (1985) 159 CLR 550
National Companies and Securities Commission Limited v News Corporation Limited (1984) 156 CLR 296

APPELLANT:

Mr Casano

RESPONDENT:

Ms Antipov

INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Lawyers

FILE NUMBER:

PAC

3528

2012

APPEAL NUMBER:

153

2016

DATE DELIVERED:

9 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ryan & Kent JJ

HEARING DATE:

19 September 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 August 2016

LOWER COURT MNC:

[2016] FamCA 653

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr O’Sullivan of O'Sullivan Legal

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:	Legal Aid NSW
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Tiyce & Lawyers

Orders

The appeal be dismissed.
That within one month the appellant pay the costs of the Independent Children’s Lawyer fixed at $6,210.00.

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 Casano & Antipov (No. 2) 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 153 of 2016
File Number: PAC 3528 of 2012

Mr Casano

Appellant

and

Ms Antipov

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 8 May 2017, Mr Casano (“the father”) appeals against a number of parenting orders made on 10 August 2016 by Hannam J pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The orders concern the parties’ son, B (“the child”) who was born in mid-2009. The practical effect of the orders was to give the child’s mother, Ms Antipov (“the mother”) absolute parental authority…

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 Casano and Antipov (No. 2)

Details

AGLC: Casano and Antipov (No. 2) [2017] FamCAFC 234
Case: [2017] FamCAFC 234
Decision Date: 9 November 2017

CaseChat Overview and Summary

The appeal in Casano and Antipov (No. 2) involved the parents, Casano and Antipov, with the primary focus being on the parenting arrangements for their child. The dispute was heard in the Family Court of Australia, with the appeal subsequently brought before a higher court. The crux of the appeal centred on whether the father had been denied procedural fairness during the initial proceedings, and whether adverse findings had been made on issues that were not adequately raised or considered. The father also contested the weight given to certain evidence and argued that the reasons provided by the primary judge were insufficient. Additionally, the father sought a reconsideration of the parenting order, advocating for supervised visitation rather than an outright denial of contact with the child.

The court was tasked with determining whether the father had indeed been denied procedural fairness, whether the findings were based on issues that were not properly raised, and if the reasons provided by the primary judge were adequate. The court also examined whether the evidence was appropriately weighted and if the primary judge's decision to deny unsupervised contact should have been altered to allow supervised visitation. In evaluating these issues, the court considered the best interests of the child, the nature of the family violence, and the overall context of the proceedings.

Upon review, the court found that the father had not been denied procedural fairness and that the issues raised were adequately considered. The court concluded that the reasons provided by the primary judge were sufficient and that the evidence was appropriately weighted. The court upheld the primary judge's decision to deny unsupervised contact, deeming it in the child's best interests given the circumstances. Consequently, the appeal was dismissed. The court also granted the application for costs, ordering the appellant to pay the costs of the Independent Children’s Lawyer within one month, as fixed at $6,210.00.

Orders

Orders of the court

The appeal be dismissed.

That within one month the appellant pay the costs of the Independent Children’s Lawyer fixed at $6,210.00.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.