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Dennett & Norman

Case [2007] FamCA 57 13 February 2007

Statutory Construction

Family Law

Evidence

Statutory Interpretation

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FAMILY COURT OF AUSTRALIA

DENNETT & NORMAN

[2007] FamCA 57

FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – CHILDREN – Competing residency applications between the appellant mother and the paternal grandparents of the child – Role of the grandparents in parenting the child – Exercise of discretion – Alleged deceptive and misleading conduct by the step-grandmother – Whether the trial Judge acted on a wrong principle in failing to proceed on a presumption in favour of the child residing with the parent, rather than with other parties - No presumption of parental responsibility in favour of the mother as the biological parent - Appeal dismissed.

FAMILY LAW – APPEAL – EVIDENCE – Admissibility and use of expert evidence – Definition of an expert witness – Whether the trial Judge erred in admitting into evidence the affidavits and testimony of the school guidance counsellor - Allegation of bias not supported by the facts.

FAMILY LAW – APPEAL – EVIDENCE – Admissibility of evidence of a child’s wishes – Whether the admission into evidence of the child’s diary and a letter addressed to the trial Judge written by the child was contrary to public policy – Family Law Act 1975 (Cth) S 100B (now S 69ZV) – Exception to the hearsay rule – Obligation of a Judge to consider such matters.

B & BFamily Law Reform Act 1995 (1997) FLC 92-755
Bennett & Bennett (1991) FLC 92-191
D & F (unreported) [2001] FamCA 382
Gronow & Gronow (1979) 144 CLR 513
Hodak v Newman (1993) FLC 92-421
Makita (Australia) Pty Ltd v Sprowles 2001 NSWCA 305
Re Evelyn (1998) FLC 92-807
Reynolds & Reynolds (1973) 47ALJR 499
Rice v Miller (1993) FLC 92-415

Family Law Act 1975 (Cth)

APPELLANT:

DENNETT

RESPONDENT:	NORMAN
SECOND RESPONDENTS:	NORMAN & NORMAN

INDEPENDENT CHILDREN’S LAWYER:

LEGAL AID (QLD)

FILE NUMBER:

BRF

713

2005

APPEAL NUMBER:

2006

DATE DELIVERED:

13 February 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Kay, May & Boland JJ

HEARING DATE:

11 May 2006

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 February 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Foley

SOLICITOR FOR THE APPELLANT:

Rowell, Gill & Brown

COUNSEL FOR THE RESPONDENT:

Mr Cameron

SOLICITOR FOR THE RESPONDENT:

Blake Topping

COUNSEL FOR THE

SECOND RESPONDENTS:

Mr Cameron

SOLICITOR FOR THE

SECOND RESPONDENTS:

Blake Topping

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Ms Hogan

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Legal Aid Queensland

Orders

That the appeal be dismissed.
That there be no order as to costs.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 17 of 2006
File Number: BRF 713 of 2005

DENNETT

Appellant

And

NORMAN

Respondent

And

NORMAN & NORMAN
Second Respondents

REASONS FOR JUDGMENT

In a Notice of Appeal filed on 16 March 2006 on behalf of the mother against parenting orders made on 17 February 2006 it is asked that the child, a girl born 17 March 1995 live with her should the appeal be allowed. The other parties…

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: Dennett & Norman [2007] FamCA 57
Case: [2007] FamCA 57
Decision Date: 13 February 2007

CaseChat Overview and Summary

This appeal concerned competing applications for the residency of a child between the appellant mother and the paternal grandparents. The primary dispute revolved around the role the grandparents had played in the child's upbringing and allegations of deceptive conduct by the step-grandmother. The appeal was brought before the Full Court of the Family Court of Australia.

The court was required to determine several key legal issues. These included whether the trial judge had erred by failing to apply a presumption in favour of the child residing with the parent, as opposed to other parties, and whether there was a presumption of parental responsibility in favour of the mother. Further issues concerned the admissibility and use of expert evidence from a school guidance counsellor, including allegations of bias, and the admissibility of the child's wishes, specifically a diary and a letter to the judge, in light of public policy and exceptions to the hearsay rule under the *Family Law Act 1975* (Cth).

The Full Court held that there was no presumption of parental responsibility in favour of the mother as the biological parent in this context. The court found that the trial judge had not acted on a wrong principle and that the admission of the guidance counsellor's evidence was not supported by the facts of bias. Furthermore, the court determined that the admission of the child's diary and letter was not contrary to public policy and that the judge had an obligation to consider such matters. Consequently, the appeal was dismissed.

Orders