Constitutional Law (Cth)—Powers of the Commonwealth Parliament—Marriage—Divorce and matrimonial causes, and in relation thereto, parental rights, and the custody and guardianship of infants—Family Court of Australia—Jurisdiction—Powers—Proceedings or completed proceedings—Custody of child of a marriage—Application by stranger—Wardship proceedings in State Supreme Court—Application for award of custody—Wardship jurisdiction—The Constitution (63 &64 Vict. c. 12), s. 51(xxi), (xxii)—Family Law Act 1975 (Cth) ss. 3(2), 4(1) "matrimonial cause" (c), (f), 8(1), 31(1), 39(1), (5), 40(3), 61(1), 64(1), (7).
Decisions
April 23. The following written judgments were delivered: - GIBBS C.J. These proceedings, which have been removed into this Court by order made under s. 40(1) of the Judiciary Act, were commenced in the Supreme Court of New South Wales by Alan Edward Fountain and Anitra Fountain, the plaintiffs, who are husband and wife. The defendants in the proceedings are Patricia Margaret Alexander (formerly Jackson) and Bruce William Jackson, who were formerly husband and wife, but whose marriage has been dissolved. The proceedings relate to Gary George Jackson, a child of the marriage between Patricia Margaret Alexander and Bruce William Jackson. The relief claimed in the proceedings by the plaintiffs is as follows:
"1. An order that the child Gary George Jackson born 31st plaintiffs be declared a ward of this Honourable Court. 2. An order pending further order of the Court that the said child be placed in the care and control of the plaintiffs on such terms and conditions as the Court deems fit. 3. Such other or further order as the Court might consider necessary or expedient. 4. Costs."
The question for decision is whether the Supreme Court has jurisdiction to make the orders sought. (at p621)
2. The child Gary was born on 31 March 1967. On 22 October 1971 the Supreme Court of New South Wales, exercising jurisdiction under the Matrimonial Causes Act 1959 (Cth), as amended, pronounced a decree nisi (which was later made absolute) for dissolution of the marriage between Patricia Margaret Jackson and Bruce William Jackson, and ordered that Patricia Margaret Jackson have custody of Gary. Before that date, in October 1968, Patricia Margaret Jackson had commenced to live as man and wife with Alan Edward Fountain and she continued to live with him until 1975. On 5 August 1971 Patricia Margaret Jackson gave birth to a child, Toni Terese Fountain, of whom Alan Edward Fountain is the father. When Patricia Margaret Jackson and Alan Edward Fountain separated in 1975, Gary and Toni remained with Mr. Fountain. In 1977 Patricia Margaret Jackson married Phillip John Alexander and in 1978 Alan Edward Fountain married Anitra Fountain. From August 1978 to the date of the proceedings the two children have from time to time lived with their mother and her present husband and also from time to time with Mr. and Mrs. Fountain. Proceedings concerning the custody of the child Toni…
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
Fountain v Alexander [1982] HCA 16
Case
[1982] HCA 16
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal in *Fountain v Alexander*. The dispute concerned the proper assessment of damages for personal injuries sustained by the respondent, Mr. Alexander, in a motor vehicle accident. The appellant, Mr. Fountain, was the driver of the other vehicle involved in the collision. The primary issue on appeal was whether the damages awarded by the trial judge were excessive.
The High Court was required to determine whether the damages awarded for the respondent's injuries, including pain and suffering, loss of amenities of life, and future economic loss, were so high as to constitute an error of law. Specifically, the court considered the principles governing the assessment of damages for non-economic loss and the approach to calculating future economic loss, particularly in circumstances where the injured party's earning capacity has been diminished.
The Court affirmed the well-established principle that an appellate court should only interfere with a trial judge's assessment of damages if the award is demonstrably wrong or so disproportionate as to indicate an error in principle. Applying this principle, the majority of the Court found that the damages awarded for pain and suffering and loss of amenities were within a reasonable range, notwithstanding the significant sum. However, the Court also reviewed the calculation of future economic loss, considering the respondent's pre-accident earning capacity and the impact of his injuries on his ability to earn in the future. The Court ultimately found that the damages awarded were not excessive and upheld the trial judge's assessment.