GRANDHOUSE & GRANDHOUSE - [2012] FamCAFC 13

FAMILY COURT OF AUSTRALIA

GRANDHOUSE & GRANDHOUSE

[2012] FamCAFC 13

FAMILY LAW – APPEAL – Appeal from a decision of a Family Court judge allowing the mother only limited supervised time with her young child – In circumstances where the appeal was conducted in an entirely unsatisfactory manner – Whether the trial Judge erred in admitting inadmissible evidence that was said to be prejudicial to the mother’s case – The trial Judge correctly relied on evidence in circumstances where the mother herself adopted the truth of that evidence – Whether the trial Judge erred by wrongly excluding evidence from the mother – His Honour correctly dealt with evidence presented by the mother and her counsel – Whether the trial Judge erred in his findings concerning family violence – The trial Judge carefully considered the allegations of family violence and made appropriate findings – Whether the trial Judge failed to provide the mother procedural fairness and an impartial hearing – There was no denial of procedural fairness and the mother received an impartial hearing – No merit found in any of the grounds of the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother was wholly unsuccessful – Mother to pay costs of both the father and the Independent Children’s Lawyer, including costs reserved.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Ms Grandhouse

RESPONDENT:

Mr Grandhouse

INDEPENDENT CHILDREN’S LAWYER:

Ms Adams

FILE NUMBER:

NCC

1096

2007

APPEAL NUMBER:

139

2010

DATE DELIVERED:

3 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Thackray and Ainslie-Wallace JJ

HEARING DATE:

27 June 2011 & written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 September 2010

LOWER COURT MNC:

[2010] FamCA 921

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Pender

SOLICITOR FOR THE APPELLANT:

Self represented

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Thomas Mitchell Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Adams & Associates

Orders

The appeal be dismissed.
The mother pay the father’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal, including costs reserved, as agreed or, in default of agreement, as assessed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 139 of 2010
File Number: NCC 1096 of 2007

Ms Grandhouse

Appellant

And

Mr Grandhouse

Respondent

And

Ms Adams

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This is the mother’s appeal against orders made by Le Poer Trench J on 16 September 2010, which allowed the mother only limited, supervised time with her young son.
The orders provided for the child to live with the father, and for the father to have sole parental…

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

Case: [2012] FamCAFC 13
Decision Date: 3 February 2012

CaseChat Overview and Summary

The appeal was brought by a mother against a decision of a Family Court judge that had granted her limited supervised time with her young child. The mother argued that the trial judge had erred in several respects, including admitting inadmissible evidence, excluding evidence, making incorrect findings concerning family violence, and denying her procedural fairness and an impartial hearing. The father and the Independent Children's Lawyer responded that the mother's appeal was wholly without merit and that she should pay the costs of the appeal. The court considered the arguments and found no merit in any of the grounds of the appeal. The mother's appeal was dismissed, and she was ordered to pay the costs of both the father and the Independent Children's Lawyer, including costs reserved.

The legal issues that the court was required to decide included whether the trial judge had erred in admitting inadmissible evidence, excluding evidence, making incorrect findings concerning family violence, and denying the mother procedural fairness and an impartial hearing. The court found that the trial judge had not erred in any of these respects. The court considered that the trial judge had carefully considered the evidence and made appropriate findings, and that the mother had not been denied procedural fairness or an impartial hearing.

The court's reasoning was based on a detailed consideration of the evidence and the arguments presented by both parties. The court found that the trial judge had not erred in admitting evidence, as the mother herself had adopted the truth of the evidence in question. The court also found that the trial judge had correctly excluded evidence from the mother, as it was not relevant to the issues in the case. Concerning family violence, the court found that the trial judge had carefully considered the allegations and made appropriate findings. Finally, the court found that the mother had received an impartial hearing and that there had been no denial of procedural fairness.

The final orders of the court were that the appeal be dismissed and that the mother pay the costs of both the father and the Independent Children's Lawyer, including costs reserved. This outcome reflected the court's finding that the mother's appeal was wholly without merit.

Orders

Orders of the court

The appeal be dismissed.

The mother pay the father’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal, including costs reserved, as agreed or, in default of agreement, as assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It was asserted in the mother’s supplementary submissions that the trial Judge had “rejected the tender of the whole of the transcript” of the Local Court proceedings. We were not informed when in the proceedings this allegedly occurred. We have, however, located the following passage from the transcript on 4 December 2008, which makes clear that the trial Judge was quite prepared to receive any relevant portions of the transcript into evidence (our emphasis): [COUNSEL FOR THE MOTHER]: Your Honour, the tender of the transcript of the proceedings in the Local Court, I would tender the entire transcript.HIS HONOUR: Why?[COUNSEL FOR THE MOTHER]: Because it does - it was a defended hearing, as your Honour said, and it's sworn evidence. There's a finding, should I say. HIS HONOUR: We know what the finding is. [COUNSEL FOR THE MOTHER]: Yes, your Honour, but it's - - - HIS HONOUR: If you want to find the part that describes what it is in this COPS entry you want to put into evidence and tender those pages, that's fine. But if you want me to read a great wad of papers just to find something that you haven't bothered to find yourself, I'm not going to do it. It's not unreasonable for me to take that stand, is it?[COUNSEL FOR THE MOTHER]: No, your Honour. HIS HONOUR: Well, you find it, you tell me exactly where it is that you want to rely on the transcript and I'll read it and I'll accept it into evidence. You don't have to do it right now.[COUNSEL FOR THE MOTHER]: Thank you, your Honour. In any event, a portion of the transcript was received into evidence and discussed at length in his Honour’s reasons (at paragraph 225 and following). Counsel for the mother was critical of the trial Judge for having found in his reasons that there was nothing about the father’s presentation in the witness box “which suggested he was an aggressive ‘wife beater’”. Counsel complained that “to assess someone’s criminal history on the basis of their appearance is not a sound jurisprudential method”. We note that his Honour’s remark about the husband not having presented in the witness box as a “wife beater” was immediately followed by the observation that he had also “at no stage presented in an apparently intoxicated state”. We find nothing in his Honour’s reasons to suggest he made his determination about the father’s propensity for violence on the basis of his demeanour, any more than he determined the husband’s drinking habits on the basis of his sobriety in the witness box. Thus, notwithstanding what he said about the husband not appearing to be intoxicated in Court, the trial Judge recorded at paragraph 1055 of his reasons:In relation to the father I also have concerns about some aspects of his life and the affect of same on [the child]. Of particular concern is the father’s consumption of alcohol associated with the impact upon his behaviour of alcohol taken to excess. The fact is, notwithstanding how the father presented in the witness box, the trial Judge accepted he had behaved violently toward the mother.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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