CORSON & CORSON - [2020] FamCAFC 311

FAMILY COURT OF AUSTRALIA

CORSON & CORSON

[2020] FamCAFC 311

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the mother appeals from interim parenting orders allowing the father to spend unsupervised time with the children – Where evidence was untested – Challenge to the adequacy of reasons – Where the primary judge extensively referred to and commented upon the single expert’s report and traversed the parties’ evidence and their particular positions – Where the primary judge’s reasons, taken as a whole, explain why the outcome which he determined was in the children’s best interests, represented the least-worst outcome – Where the primary judge’s risk assessment was exquisitely one to which, absent error of the kind identified in House v The King (1936) 55 CLR 499 being established, is not susceptible to appellate interference – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the father and the Independent Children’s Lawyer each sought their costs from the mother – Where the circumstances justify an order for costs – Costs orders made in favour of the father and the Independent Children’s Lawyer in the amounts sought.

Family Law Act 1975 (Cth) s 117

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Deiter & Deiter [2011] FamCAFC 82
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378
M v M (1988) 166 CLR 69; [1988] HCA 68
N and S and The Separate Representative (1996) FLC 92-655; [1995] FamCA 139
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Corson

RESPONDENT:

Mr Corson

INDEPENDENT CHILDREN’S LAWYER:

Helen Volk Lawyers

FILE NUMBER:

WOC

886

2018

APPEAL NUMBER:

EAA

115

2020

DATE DELIVERED:

10 December 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Strickland, Watts & Tree JJ

HEARING DATE:

11 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 July 2020

LOWER COURT MNC:

[2020] FCCA 1910

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Rossi Simicic Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Johnston

SOLICITOR FOR THE RESPONDENT:

Caldwell Martin Cox

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Anderson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Helen Volk Lawyers

Orders

The appeal be dismissed.
Within four months of the date of these orders, the appellant mother pay the respondent father’s costs fixed in the sum of $8,558.63.
Within four months of the date of these orders, the appellant mother pay the Independent Children’s Lawyer’s costs fixed in the sum of $10,539.69.

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 Corson & Corson 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…

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 CORSON & CORSON

Details

AGLC: CORSON & CORSON [2020] FamCAFC 311
Case: [2020] FamCAFC 311
Decision Date: 10 December 2020

CaseChat Overview and Summary

The mother appealed against interim parenting orders that permitted the father to spend unsupervised time with their children. The Family Court of Australia presided over the appeal. The court was tasked with determining whether the orders were appropriate, considering the untested evidence and the adequacy of the primary judge's reasons. The mother contested the adequacy of the reasons provided, arguing that the primary judge had not sufficiently addressed her concerns. Additionally, the court considered whether costs should be awarded to the father and the Independent Children's Lawyer.

The court examined whether the primary judge's reasons were sufficient to justify the interim parenting orders. The primary judge had thoroughly reviewed the single expert’s report and the parties' evidence, providing detailed reasons that explained why the outcome was in the children's best interests. The court concluded that the risk assessment made by the primary judge was not subject to appellate interference, absent any error of the kind identified in House v The King. The court found that the primary judge's reasons, when taken as a whole, adequately explained the least-worst outcome for the children.

As the appeal did not establish any error in the primary judge's decision-making process, the court dismissed the mother's appeal. The court also considered the costs application by the father and the Independent Children's Lawyer, determining that the circumstances justified an order for costs. The mother was ordered to pay the father's costs of $8,558.63 and the Independent Children's Lawyer's costs of $10,539.69 within four months of the date of the orders.

Orders

Orders of the court

The appeal be dismissed.

Within four months of the date of these orders, the appellant mother pay the respondent father’s costs fixed in the sum of $8,558.63.

Within four months of the date of these orders, the appellant mother pay the Independent Children’s Lawyer’s costs fixed in the sum of $10,539.69.

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.