GARRAM & GARRAM - [2019] FamCAFC 239

FAMILY COURT OF AUSTRALIA

GARRAM & GARRAM

[2019] FamCAFC 239

FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father’s costs of the appeal in a fixed sum.

Family Law Act 1975 (Cth) ss 4, 60CC, 65DAA, 117(2A)

Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lane & Nichols (2016) FLC 93–750; [2016] FamCAFC 234
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Ms Garram

RESPONDENT:

Mr Garram

FILE NUMBER:

NCC

414

2019

APPEAL NUMBER:

2019

DATE DELIVERED:

9 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Watts & Tree JJ

HEARING DATE:

9 December 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 August 2019

LOWER COURT MNC:

[2019] FCCA 2386

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Petrie

SOLICITOR FOR THE APPELLANT:

Court Legal

COUNSEL FOR THE RESPONDENT:

Ms McMahon

SOLICITOR FOR THE RESPONDENT:

Roberts Legal

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $10,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garram & Garram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 90 of 2019
File Number: NCC 414 of 2019

Ms Garram

Appellant

And

Mr Garram

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Aldridge J

Introduction

This is an appeal concerning the orders made for the parenting arrangements of X (“the elder child”), born in 2003 and Y (“the younger child”), born in 2007 (collectively, “the children”). In interim proceedings in the Federal Circuit Court of Australia, Mr Garram (“the father”), sought orders that the children live with him and return to live in Region B in New South Wales, where they had lived until early 2019. Ms Garram (“the mother”) proposed that the children remain living with her in…

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 GARRAM & GARRAM

Details

AGLC: GARRAM & GARRAM [2019] FamCAFC 239
Case: [2019] FamCAFC 239
Decision Date: 9 December 2019

CaseChat Overview and Summary

In the Family Court of Australia, the case of Garram & Garram involved an appeal against interim parenting orders which mandated a shift in the care of the children from the mother to the father. The appeal contested the decision made by the primary judge, arguing that insufficient consideration was given to the children's views and other relevant factors under section 60CC of the Family Law Act. The mother, as the appellant, sought to overturn the interim orders, which had been made in the Family Court at first instance.

The legal issues before the court included whether the primary judge had appropriately considered the children's views and whether the decision-making process adhered to the statutory requirements under section 60CC of the Family Law Act. The court was tasked with determining whether the primary judge's decision represented a miscarriage of justice and whether the children's best interests had been adequately weighed. The appellant contended that the primary judge had placed undue emphasis on the children's expressed wishes without sufficient regard to other relevant considerations.

The court found that the primary judge had appropriately considered the children's views but had not made them the sole determinant of the outcome. It was held that the primary judge had given sufficient weight to other relevant factors outlined in section 60CC, including the benefit to the children of having a meaningful relationship with both parents and the need to protect the children from harm. The court concluded that there was no miscarriage of justice in the primary judge's decision, and the appeal was dismissed. The mother was ordered to pay the father’s costs of the appeal in a fixed sum of $10,000.

The appeal was dismissed, and the mother was ordered to pay the father's costs of the appeal in a fixed sum of $10,000. This amount was to be confirmed and entered into the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent’s costs fixed in the sum of $10,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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