GROTH & BANKS - [2017] FamCAFC 206

FAMILY COURT OF AUSTRALIA

GROTH & BANKS

[2017] FamCAFC 206

FAMILY LAW – APPEAL – Parenting – Relocation – Whether the findings of the primary judge were available on the evidence – Whether the primary judge failed to make findings in the context of unchallenged evidence of family violence – Where findings not made but evidence taken into account – Where case turns on its own facts – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Application for costs granted.

Family Law Act 1975 (Cth) ss 60CC(3)(j), 69ZT

Amador v Amador (2009) 43 Fam LR 268
CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499
Johnson and Page (2007) FLC 93-344
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Maluka & Maluka (2011) FLC 93-464
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Weissensteiner v The Queen (1993) 178 CLR 217

APPELLANT:

Mr Groth

RESPONDENT:

Ms Banks

FILE NUMBER:

MLC

865

2012

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

4 October 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Ryan and Aldridge JJ

HEARING DATE:

16 May 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 January 2017

LOWER COURT MNC:

[2017] FamCA 3

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr North SC and Mr Williams

SOLICITOR FOR THE APPELLANT:

Nicholes Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hoult

SOLICITOR FOR THE RESPONDENT:

Ian Robertson Legal

Orders

The appeal be dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal in the amount of $15,000 within one month.

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 Groth & Banks 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 MELBOURNE

Appeal Number: SOA 5 of 2017
File Number: MLC 865 of 2012

Mr Groth

Appellant

And

Ms Banks

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 18 January 2017, Mr Groth (“the father”) appeals against final parenting orders made by Thornton J on 13 January 2017. Those orders permit Ms Banks (“the mother”) to change their six year old son’s place of residence from Suburb N in Melbourne to Town D.
Town D is about 60 kilometres from the Melbourne Central Business District. The father lives in Suburb L on…

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 GROTH & BANKS

Details

AGLC: GROTH & BANKS [2017] FamCAFC 206
Case: [2017] FamCAFC 206
Decision Date: 4 October 2017

CaseChat Overview and Summary

In this appeal, the father, Groth, sought to challenge a primary judge's decision in a parenting case that permitted the mother, Banks, to relocate with the child to a distant location. The family court's decision was upheld by the full court. The key issue before the court was whether the primary judge's findings were supported by the evidence and whether there was any error in the primary judge's consideration of the evidence of family violence. The father argued that the primary judge had not properly considered the evidence of family violence and that the findings were not supported by the evidence.

The court found that the primary judge had indeed considered the evidence of family violence and had made findings on the matter, even if those findings were not explicitly stated in the reasons. The court noted that the case turned on its own facts and circumstances and that the primary judge's findings were available on the evidence. The court also found that the father had not demonstrated any error in the primary judge's consideration of the evidence of family violence. The appeal was dismissed, and the father was ordered to pay the mother's costs of and incidental to the appeal.

In light of the father's complete lack of success in the appeal, the mother's application for costs was granted. The court ordered the father to pay the mother's costs of and incidental to the appeal in the amount of $15,000 within one month. The form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

The appeal be dismissed.

The appellant father to pay the respondent mother’s costs of and incidental to the appeal in the amount of $15,000 within one month.

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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