Dennison & Wang - [2010] FamCAFC 182

FAMILY COURT OF AUSTRALIA

DENNISON & WANG

[2010] FamCAFC 182

FAMILY LAW - APPEAL – CHILDREN – With whom a child lives and spends time – Where the trial judge ordered the mother and father have parental responsibility, but for the children to have no time with the father – Unsubstantiated sexual and physical abuse allegations made by the mother against the father – Where the trial judge made adverse findings against the mother – Where the children could be emotionally and physically harmed if orders required the children to spend time with the father – The working of the Family Law Act 1975 (Cth) and the paramountcy of children’s best interests – Where the findings of the trial judge were consistent with evidence – Where the necessity to preserve children’s physical and emotional safety and welfare overwhelming – Where there is a need for the litigation to end – Reality of the situation a major consideration – No appealable error made by the trial judge –Appeal dismissed.

FAMILY LAW - COSTS – Where costs sought by the mother who was in receipt of Legal Aid – Father self-represented and despite not being in affluent circumstances was denied funding – In the circumstances of the case no order made as to costs.

Family Law Act 1975 (Cth): s 60B, s 60CA, s 60CC, s 65DAA

Gronow & Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
MRR v GR (2010) 263 ALR 368

APPELLANT:

Mr Dennison

RESPONDENT:

Ms Wang

FILE NUMBER:

MLF

2835

2004

APPEAL NUMBER:

2010

DATE DELIVERED:

17 September 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

May, O’Ryan and Strickland JJ

HEARING DATE:

5 July 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2009

LOWER COURT MNC:

[2009] FamCA 1251

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Wiener

Orders

The appeal is dismissed.
There is no order as to the costs of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Dennison & Wang is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 5 of 2010

File Number: MLF 2835 of 2004

Mr Dennison

Appellant

And

Ms Wang

Respondent

REASONS FOR JUDGMENT

Introduction

At the commencement of hearing the appeal an extract from House v The King (1936) 55 CLR 499 was read to the father.
It is also an appropriate reference to commence this judgment. The reading of the passage was not intended to be some criticism of the grounds of appeal but rather to assist the father with his submissions. The relevant portion, from paragraphs 504 to 505 is as follows:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.…

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 Dennison & Wang

Details

AGLC: Dennison & Wang [2010] FamCAFC 182
Case: [2010] FamCAFC 182
Decision Date: 17 September 2010

CaseChat Overview and Summary

The appeal in Dennison & Wang was brought before the court following a trial judge's decision regarding the living arrangements of children in a family law dispute. The parents, whose identities have not been disclosed, were at odds over the allocation of parental responsibility and the amount of time their children should spend with each parent. The mother made serious allegations of sexual and physical abuse against the father, which were not substantiated. The trial judge ruled that while both parents should retain parental responsibility, the children should not spend any time with the father due to concerns about their emotional and physical safety.

The legal issues before the court were the interpretation and application of the Family Law Act 1975 (Cth) in light of the paramountcy of the children's best interests. The court had to determine whether the trial judge's findings were consistent with the evidence presented and if the necessity to protect the children's welfare justified the decision to deny the father any time with the children. The court also considered the reality of the situation and the need for the litigation to conclude.

The court found that the trial judge's findings were consistent with the evidence and that the necessity to preserve the children's physical and emotional safety was overwhelming. The court was satisfied that the trial judge had correctly applied the principles of the Family Law Act and had not made any appealable error. The court dismissed the father's appeal and made no order regarding the costs of the appeal, given the mother's receipt of legal aid and the father's self-representation without funding.

Orders

Orders of the court

The appeal is dismissed.

There is no order as to the costs of the appeal.

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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