Dorsey & Lamb - [2021] FedCFamC1A 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dorsey & Lamb [2021] FedCFamC1A 94

Appeal from: Lamb & Dorsey [2021] FCCA 1783

Appeal number(s): NOA 53 of 2021

File number(s): TVC 11 of 2020

Judgment of: ALDRIDGE J

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Adequacy of reasons – Primary judge’s reasons for judgment are inadequate – Appeal allowed – Matter remitted for rehearing – Costs certificates issued in respect of the appeal and rehearing.

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 61DA

Federal Proceedings (Costs) Act 1981 (Cth)

Cases cited:
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187

Mitchell v Cullingral Pty Ltd [2012] NSWCA 389

Nominal Defendant v Kostic [2007] NSWCA 14

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 43

Date of hearing: 30 November 2021

Place: Sydney (via video link)

Counsel for the Applicants: Mr Trevino QC

Solicitor for the Applicants: Connolly Suthers Lawyers

Counsel for the First Respondent: Mr Van der Weegen

Solicitor for the First Respondent: Freedom Law

The Second Respondent: Self-represented litigant

Counsel for the Independent Children’s Lawyer: Ms Lawrence

Solicitor for the Independent Children’s Lawyer: Keir Steele Waldon Lawyers
ORDERS

NOA 53 of 2021
TVC 11 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR B DORSEY

First Appellant

MS DORSEY

Second Appellant

AND:
MS LAMB

First Respondent

MR DORSEY

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

17 DEMCEBER 2021

THE COURT ORDERS THAT:
1.The appeal against the orders made on 4 August 2021 is allowed.
2.The matter be remitted for rehearing to the Federal Circuit and Family Court of Australia (Division 2) by a judge other than the primary judge.
3.The orders made on 4 August 2021 are set aside on and from the first mention of the remitted matter before a judge of the Federal Circuit and Family Court of Australia (Division 2), Orders 13 and 14 are to remain stayed until that time.
4.The Court grants to the appellants a costs certificate pursuant to 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 appellants in respect of the costs incurred by the appellants in relation to the appeal.
5.The Court grants to the first respondent a costs certificate pursuant to 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…

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 Dorsey & Lamb

Details

AGLC: Dorsey & Lamb [2021] FedCFamC1A 94
Case: [2021] FedCFamC1A 94
Decision Date

CaseChat Overview and Summary

The case of Dorsey & Lamb involved a dispute concerning the living arrangements of a child, with the mother seeking for the child to move from the paternal grandparents' care in City F to live with her in City D. The father and paternal grandparents opposed the move, arguing that it would be a significant change for the child. The Family Court of Australia was tasked with determining the child's best interests, weighing the mother's parenting capacity against the potential impact of a move on the child. The court also considered the views of the child, expert evidence, and the recommendations of the Family Report Writer, the mother's psychologist, and the Independent Children's Lawyer.

The central legal issues before the court were the mother's ability to provide a stable and nurturing environment for the child and the potential effects of relocating the child from the paternal grandparents' care. The court had to assess the evidence regarding the mother's progress since 2018, the child's current emotional and psychological needs, and the recommendations for support during any transition period. The court needed to balance the child's need for stability and continuity against the potential benefits of living with the mother, as suggested by expert evidence.

The Family Court found that it was in the best interests of the child to live with the mother in City D, while allowing for regular holiday visits with the father and paternal grandparents. The court recognised the significant contributions of the father and paternal grandparents to the child's life, particularly in the last three years. However, the court concluded that the child would benefit from living with the mother, and that the recommendations for support during the transition period should be implemented. The court acknowledged the uncertainty involved in the substantial move but determined that the overall benefits to the child outweighed the potential risks.

The court ordered that the child live with the mother in City D, with regular holiday visits and communication with the father and paternal grandparents. The court also recommended that support be provided to the child during the transition period, in line with the Family Report Writer's recommendations and the views of the mother's psychologist and the Independent Children's Lawyer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is apparent from that recitation that the key issues were the mother’s parenting capacity (it was described as a “leap of faith” to have the child live with her (at [225] and [228])) and the effect on the child, i.e. change of circumstances, in a move from the paternal grandparents care in City F, in which he had lived for the last three years, to City D. This led to the following:COMMENTARY AND CONCLUSIONS228.As referred to above in my recording of the submissions by the Father and [the paternal grandparents], their view is that it would be a leap of faith to change [the child’s] residence from City F to City D. They believe that the Mother’s parenting skills are untested, even if the evidence is that she has made significant progress since the dark days for her of 2018.229.The expert evidence is that [the child] will benefit from living with his Mother and in fact, it may be a source of considerable emotional and psychological loss for him in the future if this does not occur.230.The updated Family Report supports [the child] living with his Mother although it recognises that caution about an order changing residence, should be exercised. The report recommends support for [the child] during any transition period.231.The Mother is seeing her daughter [L] regularly. She has had [the child] and [L] in her household during school holiday periods when [the child] has travelled to City D.232.In my view, the recommendations of the Family Report Writer which are supported by the Mother’s psychologist and by the Independent Children’s Lawyer, should be put into effect.233.It needs to be recognised that the Father and his parents have had a significant input into [the child’s] life, particularly in the last three years although in reality, longer than that. The Father was generous in assisting the Mother and being available for her calls, when she separated from [the mother’s former partner]. The Paternal Grandparents have been very generous in their support of [the child] since late 2018, notwithstanding that from the Mother’s point of view [the child] should not have been in City F for as long as he has. [The child’s] school arrangements and engagement with healthcare professionals have been arranged by the Grandparents and at their cost. Further, they have incurred considerable expense in arrangements for [the child] to spend holiday time with his Mother. The Father and the Grandparents should continue to be very important people in [the child’s] life.234.My decision in this case has been difficult. I was assisted by all of the lawyers including by the orders proposed by the ICL. Nevertheless, the Grandparents have not been incorrect in referring to some uncertainty for [the child] with this substantial move.235.In all of the circumstances and on the evidence presented, I find that it is in the best interests of [the child] that he live with his Mother, spend holiday time with his Father and Grandparents and communicate with them regularly.

Ratio Decidendi

Legal Principle Established

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NOA 53 of 2021 TVC 11 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR B DORSEY First Appellant MS DORSEY Second Appellant
AND:	MS LAMB First Respondent MR DORSEY Second Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Lamb & Dorsey [2021] FCCA 1783
Appeal number(s):	NOA 53 of 2021
File number(s):	TVC 11 of 2020
Judgment of:	ALDRIDGE J
Date of judgment:	17 December 2021
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Adequacy of reasons – Primary judge’s reasons for judgment are inadequate – Appeal allowed – Matter remitted for rehearing – Costs certificates issued in respect of the appeal and rehearing.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:	Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Nominal Defendant v Kostic [2007] NSWCA 14 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs:	43
Date of hearing:	30 November 2021
Place:	Sydney (via video link)
Counsel for the Applicants:	Mr Trevino QC
Solicitor for the Applicants:	Connolly Suthers Lawyers
Counsel for the First Respondent:	Mr Van der Weegen
Solicitor for the First Respondent:	Freedom Law
The Second Respondent:	Self-represented litigant
Counsel for the Independent Children’s Lawyer:	Ms Lawrence
Solicitor for the Independent Children’s Lawyer:	Keir Steele Waldon Lawyers

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	17 DEMCEBER 2021