GRAINGER & GRAINGER - [2019] FamCAFC 145

FAMILY COURT OF AUSTRALIA

GRAINGER & GRAINGER

[2019] FamCAFC 145

FAMILY LAW – APPEAL – PARENTING – Where the orders made by the trial judge deliberately provided for no face-to-face contact between the father and the child – Where the father appeals on multiple grounds including procedural fairness and alleged errors of law – Where the father alleged the orders were based on inconsistent findings and findings not supported by evidence – Where the trial judge conducted the trial within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth) – Where the trial judge gave adequate reasons – Where findings made by the trial judge were open on the evidence – Where the appellant failed to demonstrate any error in the manner that the trial judge dealt with the evidence or exercised discretion – Where the Full Court accepts the trial judge’s findings closely resembled the expert’s evidence and were open – Where the Full Court considers the orders made by the trial judge were guided by the paramountcy of the child’s best interests – Where the father failed to demonstrate procedural unfairness – Where no appealable error is demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the trial judge invoked the slip rule to make clear that an order made by a judge in 2017 did not operate to suspend the property settlement order made in 2015 – Where the father’s appeal is limited to his complaint that the trial judge corrected an order made by another judge – Where no error is established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal is wholly unsuccessful – Application by the respondent for the appellant to pay her costs of and incidental to the appeal in a fixed amount – Where the respondent failed to comply with orders made by the Appeals Registrar to file and serve a cost schedule – Where factors under s 117(2A) of the Family Law Act 1975 (Cth) are considered – Where the Independent Children’s Lawyer did not seek a costs order against the appellant – Where there is no order as to costs – Application dismissed.

Family Law Act 1975 (Cth) Div 12A, Pt VII, Pt VIII, ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 65AA, 65DAC, 69ZN, 69ZX, 117

Family Law Rules 2004 (Cth) r 17.02(e)

House v The King (1936) 55 CLR 499; [1936] HCA 40

APPELLANT:

Mr Grainger

RESPONDENT:

Ms Grainger

INDEPENDENT CHILDREN’S LAWYER:

Holmes Donnelly & Co Solicitors

FILE NUMBER:

SYC

8552

2015

APPEAL NUMBER:

2019

DATE DELIVERED:

23 August 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Watts & Austin JJ

HEARING DATE:

14 August 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 February 2019

LOWER COURT MNC:

[2019] FamCA 56

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Ford

SOLICITOR FOR THE RESPONDENT:

Fay Frischer Solicitor

COUNSEL FOR THE INDEPENDENT…

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: GRAINGER & GRAINGER [2019] FamCAFC 145
Case: [2019] FamCAFC 145
Decision Date: 23 August 2019

CaseChat Overview and Summary

In this appeal, the father, Grainger, sought to challenge the parenting, property, and costs orders made by the trial judge in the Family Court of Australia. The father argued that the orders were made without procedural fairness, contained errors of law, and were not supported by evidence. The mother, the respondent, defended the orders, asserting that they were made in the best interests of the child and that the father's appeal was without merit.

The legal issues before the court included whether the trial judge exercised his discretion appropriately, whether the findings were supported by the evidence, and whether procedural fairness was maintained throughout the proceedings. The father argued that the trial judge's orders regarding face-to-face contact were inconsistent and not supported by evidence. Additionally, the father challenged the trial judge's invocation of the slip rule to clarify an earlier order concerning the property settlement. The court also needed to determine whether the appeal was wholly unsuccessful, warranting an order for the appellant to pay the respondent's costs.

The Full Court found that the trial judge's findings closely aligned with the evidence presented by the expert and were open to the judge. The court dismissed the father's argument that procedural unfairness occurred, noting that the trial judge provided adequate reasons for his orders. The court also held that no error was demonstrated in the trial judge's exercise of discretion or in the handling of the evidence. Regarding the slip rule, the Full Court found no error in the trial judge's correction of an earlier order. The appeal was dismissed as wholly unsuccessful, and the application for costs was dismissed due to the respondent's failure to comply with the Appeals Registrar's orders regarding the cost schedule.

The court's final orders were to dismiss the appeal and to dismiss the application for costs by the respondent.

Orders

Orders of the court

The appeal is dismissed.

No order as to costs.

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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