CROWLEY & PICTON - [2018] FamCAFC 100

FAMILY COURT OF AUSTRALIA

CROWLEY & PICTON

[2018] FamCAFC 100

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Applications to adduce a transcription of a JIRT interview and a Department of Family and Community Services contact record as further evidence in the appeal – Application of principles in CDJ v VAJ (1998) 197 CLR 172 – Where the evidence was available or obtainable at the time of the trial but was not called – Where the further evidence, if it had been called during the trial, would not have changed the outcome – Applications dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – LEAVE TO AMEND – Oral application for leave to amend the grounds of appeal and to rely on an updated Summary of Argument – Application unopposed – Leave granted.

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk – Findings of fact – Weight given to the evidence – Whether the primary judge gave inadequate weight to the need to protect the child from physical and psychological harm – Whether the primary judge gave inadequate weight to evidence about the harm the mother posed to the child when in the mother’s care – Where many of the grounds of appeal were dependent on further evidence being received – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 117(4)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

APPELLANT:

Mr Crowley

RESPONDENT:

Ms Picton

INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

FILE NUMBER:

WOC

393

2013

APPEAL NUMBER:

114

2017

DATE DELIVERED:

30 May 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Pascoe CJ, Ryan & Aldridge JJ

HEARING DATE:

14 May 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 October 2017

LOWER COURT MNC:

[2017] FamCA 811

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Swan Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Saw

SOLICITOR FOR THE RESPONDENT:

McNamara & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

Orders

Leave is granted to the appellant to file an Amended Notice of Appeal and a further Summary of Argument.
Leave is granted to the appellant to make an oral application to adduce as evidence in the appeal a transcript of a JIRT interview dated 9 September 2015.
The Applications in an Appeal filed on 30 January 2018 and 3 April 2018 and the oral application to adduce evidence are dismissed.
The appeal is dismissed.
The Independent Children’s Lawyer’s application for costs is dismissed.

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

IT…

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: CROWLEY & PICTON [2018] FamCAFC 100
Case: [2018] FamCAFC 100
Decision Date: 30 May 2018

CaseChat Overview and Summary

The matter before the Family Court of Australia involved an appeal in a parenting case concerning a child. The appellant sought to introduce further evidence in the appeal process, including a transcription of a JIRT interview and a Department of Family and Community Services contact record, which had not been presented during the trial. Additionally, the appellant sought leave to amend the grounds of appeal and to rely on an updated Summary of Argument. The respondent did not oppose the application for leave to amend.

The primary legal issues were whether the evidence could be introduced at the appellate stage, and if so, whether it would have changed the outcome of the trial. The court considered the principles established in CDJ v VAJ and applied them to the facts of this case. The court also evaluated whether the primary judge had given inadequate weight to the evidence concerning the harm the child faced when in the mother's care.

The court dismissed the applications to adduce further evidence, finding that the evidence was available or obtainable at the time of the trial and that its inclusion would not have altered the outcome. The court found that many of the grounds of appeal relied on this further evidence, and without it, the appeal could not succeed. Consequently, the court dismissed the appeal and denied the Independent Children’s Lawyer’s application for costs.

The court granted leave to the appellant to file an Amended Notice of Appeal and a further Summary of Argument, as well as to make an oral application to adduce a transcript of a JIRT interview dated 9 September 2015. The other applications in the appeal were dismissed.

Orders

Orders of the court

Leave is granted to the appellant to file an Amended Notice of Appeal and a further Summary of Argument.

Leave is granted to the appellant to make an oral application to adduce as evidence in the appeal a transcript of a JIRT interview dated 9 September 2015.

The Applications in an Appeal filed on 30 January 2018 and 3 April 2018 and the oral application to adduce evidence are dismissed.

The appeal is dismissed.

The Independent Children’s Lawyer’s application for costs is dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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