HANSLOW & HANSLOW - [2019] FamCAFC 130

FAMILY COURT OF AUSTRALIA

HANSLOW & HANSLOW

[2019] FamCAFC 130

FAMILY LAW – APPEAL – Parenting – Interim orders – Where there is no merit in the complaints made by the appellant of bias, prejudgment, lack of procedural fairness and application of wrong principle by the primary judge – Where the existing interim parenting orders were left in place and the only “new” orders made were in relation to parental responsibility, change of primary school and future high school – Where the primary judge made no error in making an order that the respondent have sole parental responsibility – Where it is legitimate to question the interim order made changing the child’s primary school given the final hearing was still to take place but given the passage of time that issue is now best dealt with at the imminent final hearing – Where the primary judge erred in making an order as to the child’s future attendance at high school – Where the reasons in relation to this order are inadequate – there is no explanation as to why the order was necessary and how it could be described as an “interim order” – Appeal allowed in part – Order (9) made by the primary judge be set aside – Appeal otherwise dismissed.

FAMILY LAW – APPLICATION TO LEAD FURTHER EVIDENCE – Where the respondent sought to adduce further evidence effectively updating the court as to the child’s transition from her previous primary school to her new primary school – Where given the outcome of the appeal it is unnecessary for that evidence to be considered by this Court – Application dismissed.

Family Law Act 1975 (Cth)

Vakauta v Kelly (1989) 167 CLR 568
Warren v Coombes (1979) 142 CLR 531

APPELLANT:

Ms C Hanslow

RESPONDENT:

Ms D Hanslow

FILE NUMBER:

MLC

8578

2010

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

31 July 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

8 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

13 June 2018

LOWER COURT MNC:

[2018] FCCA 1923

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In Person

Orders

The appeal be allowed in part.
Order (9) made by Judge Kirton on 13 June 2018 be set aside.
The appeal be otherwise dismissed.
The Application in an Appeal filed on 5 November 2018 be dismissed.

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 Hanslow & Hanslow 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 APPELLATE…

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 HANSLOW & HANSLOW

Details

AGLC: HANSLOW & HANSLOW [2019] FamCAFC 130
Case: [2019] FamCAFC 130
Decision Date: 31 July 2019

CaseChat Overview and Summary

Hanslow and Hanslow were involved in a family law dispute concerning parenting arrangements. The appeal was heard by the court, which was tasked with determining whether the primary judge had erred in the interim parenting orders made. The appellant argued that the primary judge was biased, prejudged the case, failed to adhere to procedural fairness, and applied the wrong legal principle. The court was required to decide if these complaints had merit and whether any errors by the primary judge warranted the setting aside of certain orders.

The court found that there was no merit in the appellant's complaints regarding bias, prejudgment, and procedural fairness. The court concluded that the primary judge did not make any errors in leaving the existing interim parenting orders in place and only made new orders regarding parental responsibility, the change of primary school, and the child's future high school. The court held that the primary judge was correct in granting sole parental responsibility to the respondent, but erred in making an order about the child's future high school attendance without adequate reasons. The court also found that while it was legitimate to question the interim order changing the child’s primary school, given the time that had elapsed, it was best to address that issue at the final hearing.

The appeal was allowed in part, with Order (9) made by the primary judge being set aside. The court dismissed the appeal otherwise and the application to lead further evidence, finding it unnecessary given the outcome of the appeal. 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 allowed in part.

Order (9) made by Judge Kirton on 13 June 2018 be set aside.

The appeal be otherwise dismissed.

The Application in an Appeal filed on 5 November 2018 be dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.