GARRETY & STEYN

[2019] FamCAFC 124

FAMILY COURT OF AUSTRALIA

GARRETY & STEYN [2019] FamCAFC 124

FAMILY LAW – APPEAL – PARENTING – Whether the primary judge failed to have regard to the totality of the relevant evidence, in particular the recommendations of the single expert – Whether the primary judge adequately considered conditions that the single expert’s recommendations were contingent upon – Where the parenting of the children by all parties fell short of adequate – Whether the appellant and respondent were equally blameworthy or culpable – Whether a change in residence posed an insurmountable challenge for the children – Where the children would not have a relationship with the respondent if they continued to live with the appellant, whereas the respondent would attempt to maintain all existing relationships – Where the reasons when taken as a whole are a consideration of the conditions and caveats attached to the single expert’s recommendations – Whether the primary judge failed to have regard to a number of relevant issues – Where the primary judge’s reasons and treatment of relevant issues were adequate and sufficient – Appeal dismissed – Wording of order varied.

FAMILY LAW – APPEAL – COSTS – Where the appeal was entirely unsuccessful – Fixed costs – Where the written and oral submissions made on behalf of the respondent did not provide assistance – Appellant to pay costs of the respondent fixed in a sum ordered by the Court – Appellant to pay costs of Independent Children’s Lawyer.

Family Law Act 1975 (Cth) s 117(2A)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT: Mr Garrety

RESPONDENT: Ms Steyn

INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

FILE NUMBER: NCC 802 of 2013

APPEAL NUMBER: EA 32 of 2019

DATE DELIVERED: 1 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Sydney

JUDGMENT OF: Ryan, Aldridge & Johnston JJ

HEARING DATE: 30 May 2019

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 27 March 2019

LOWER COURT MNC: [2019] FamCA 180

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Sansom SC

SOLICITOR FOR THE APPELLANT: Gillard Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Page QC with Mr Duane

SOLICITOR FOR THE RESPONDENT: Rankin Ellison Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid New South Wales

Orders

1. The appeal be allowed in part.

2. Order 17 be varied by deleting the words “has leave to” and replacing them with the word “shall”.

3. The appeal be otherwise dismissed.

4. The appellant to pay the costs of the respondent fixed in the sum of $5,000.

5. The appellant to pay the costs of the Independent Children’s Lawyer fixed in the sum of $5,511.

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…