Dautry and Wemple (No 2) - [2015] FamCAFC 248

FAMILY COURT OF AUSTRALIA

DAUTRY & WEMPLE (NO. 2)

[2015] FamCAFC 248

FAMILY LAW – APPEAL – where final orders were made granting the father sole parental responsibility and moving the child from the mother’s residence to the residence of the father – where the appellant mother submitted that the orders were plainly unreasonable and manifestly unjust and punitive to her because they were based on adverse credit findings against her and there was no finding of unacceptable risk posed by the mother to the child – where the Full Court found that despite the trial Judge’s concerns regarding the mother’s credibility, he had recognised that parenting orders must ultimately be based on the best interests of the child and that there were a range of reasons for the orders beyond just concerns regarding the mother’s credibility– appeal dismissed – costs order made.

FAMILY LAW – APPEAL – where in interim proceedings the trial Judge made a final order in relation to the schooling arrangements for the child – where the Full Court found it was an error to make final orders in relation to a child’s schooling where final orders in relation to parental responsibility and the residence arrangements for the child were yet to be made – appeal allowed – order set aside – costs certificates granted.

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

Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

Ms Dautry

RESPONDENT:

Mr Wemple

INDEPENDENT CHILDREN’S LAWYER:

Ms Yeend

FILE NUMBER:

CAC

1472

2013

APPEAL NUMBERS:

EA
EA

7
11

of
of

2015
2015

DATE DELIVERED:

23 December 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland and Aldridge JJ

HEARING DATE:

29 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 December 2013
18 December 2014

LOWER COURT MNC:

[2013] FCCA 2376
[2014] FCCA 2847

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr N Ford

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr N James

SOLICITOR FOR THE RESPONDENT:

Farrar Gesini Dunn

THE INDEPENDENT CHILDREN’S LAWYER:

Ms Yeend

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

Orders

The appeal against the final order made on 20 December 2013 concerning the schooling arrangements for the child be allowed and that order be set aside.

(2)(a) There be no order for costs in relation to the appeal referred to in Order 1 of these orders.
(b) The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal referred to in Order 1 of these orders.
(c) The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal…

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 Dautry and Wemple (No 2)

Details

AGLC: Dautry and Wemple (No 2) [2015] FamCAFC 248
Case: [2015] FamCAFC 248
Decision Date: 23 December 2015

CaseChat Overview and Summary

Dautry and Wemple (No 2) involved an appeal by the mother against final orders made by the Family Court concerning the residence and schooling of her child with the father. The mother contended that the final orders were unreasonable and unjust, as they were based on adverse credit findings against her without any finding of unacceptable risk to the child. The Full Court found that the trial judge had balanced the mother’s credibility concerns with the overarching principle that parenting orders should be based on the best interests of the child. The court upheld the final orders regarding residence and dismissed the appeal, but allowed the appeal regarding the interim schooling order, finding it improper to make final schooling orders without final residence orders.

The legal issues in the case centred on the reasonableness of the final orders and the propriety of making final schooling orders without final residence orders. The mother argued that the final orders were punitive and not in the best interests of the child, given the lack of any finding of unacceptable risk. The father contended that the orders were justified based on the child’s best interests, considering various factors, including the mother’s credibility. The Full Court examined whether the trial judge had correctly applied the best interests of the child principle and whether the final schooling order was appropriately made in the absence of final residence orders.

In its reasoning, the Full Court found that the trial judge had appropriately balanced the various factors in making the final orders, including the mother’s credibility concerns, and had ultimately focused on the child’s best interests. The court held that the trial judge’s concerns about the mother’s credibility did not render the final orders unreasonable or unjust. Regarding the interim schooling order, the Full Court determined that it was inappropriate to make final orders about a child’s schooling when final orders concerning parental responsibility and residence had not yet been made. Consequently, the appeal concerning the final residence orders was dismissed, but the appeal regarding the interim schooling order was allowed, and the order was set aside.

The final orders included allowing the appeal against the final order made on the schooling arrangements for the child and setting aside that order. The court also granted costs certificates to both parties for the costs incurred in relation to the appeal concerning the schooling order. The appeal against the final parenting orders was dismissed, and the mother was ordered to pay the father's costs of the appeal, to be assessed or agreed upon within 90 days.

Orders

Orders of the court

The appeal against the final order made on 20 December 2013 concerning the schooling arrangements for the child be allowed and that order be set aside.

(2)(a) There be no order for costs in relation to the appeal referred to in Order 1 of these orders.

(b) The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal referred to in Order 1 of these orders.

(c) The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal referred to in Order 1 of these orders.

The appeal against the final parenting orders made on 18 December 2014 be dismissed.

The appellant mother pay the respondent father’s costs of and incidental to the appeal referred to in Order 3 of these orders, with such costs to be assessed in default of agreement and to be paid within 90 days of agreement or assessment.

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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