Helbig and Rowe - [2012] FamCAFC 169

FAMILY COURT OF AUSTRALIA

HELBIG & ROWE

[2012] FamCAFC 169

FAMILY LAW ─ APPEAL ─ Appeal against interim orders of Federal Magistrate made in parenting proceedings ─ Where both parties sought orders that the father’s time with the children, on an interlocutory basis, be supervised ─ Where the dispute was whether, as the mother sought, more formal independent supervision should be ordered or, as the father sought, whether supervision should be by a member of the father’s family, and the frequency and duration of time the father spent with the children ─ Nothing to which the Court was referred demonstrated that his Honour was in error in accepting the evidence of the people who the father wanted as supervisors, or erred in finding that they were appropriate supervisors of the father’s time with the children ─ Where neither the learned Federal Magistrate’s reasons for judgment, nor anything said by his Honour during the course of the proceedings to which the Court was referred established that anything but the most tentative, and carefully guarded observations were recorded by the learned Federal Magistrate ─ Not demonstrated that the learned Federal Magistrate erred in any relevant sense ─ Appellate intervention not enlivened ─ Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where it was conceded on behalf of the mother that if the appeal was unsuccessful she could not resist an order for costs ─ Where the appeal was unsuccessful ─ Order for costs made in favour of the father with execution of order stayed until determination of the financial proceedings between the parties.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Helbig

RESPONDENT:

Mr Rowe

FILE NUMBER:

PAC

5421

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

24 October 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

12 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

29 November 2011

LOWER COURT MNC:

[2011] FMCAfam 1532

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Druitt

SOLICITOR FOR THE APPELLANT:

Ian Harper & Co

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Pryor Tzannes & Wallis

Orders

That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as a agreed or assessed on a party and party basis and that execution of such order be stayed until determination of the financial proceedings between the parties.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 74 of 2012

File Number: PAC 5421 of 2010

Ms Helbig

Appellant

And

Mr Rowe

Respondent

REASONS FOR JUDGMENT

introduction

Pursuant to an extension of time in which to do so, by Notice of Appeal filed 20 June 2012 Ms Helbig (“the mother”) appealed against interim orders made…

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 Helbig and Rowe

Details

AGLC: HELBIG & ROWE [2012] FamCAFC 169
Case: [2012] FamCAFC 169
Decision Date: 24 October 2012

CaseChat Overview and Summary

The matter of Helbig and Rowe involved an appeal against interim orders made by a Federal Magistrate in the context of parenting proceedings. Both parties sought orders for the father’s time with the children to be supervised on an interlocutory basis. The core dispute was whether the mother’s request for more formal independent supervision should be granted or whether the father’s proposal for supervision by a family member should be accepted, along with the determination of the frequency and duration of the father’s time with the children. The appeal raised issues about the appropriateness of the supervisors chosen by the father and the manner in which the Federal Magistrate had exercised his discretion in this regard.

The court considered whether the Federal Magistrate had erred in accepting the evidence of the people the father proposed as supervisors or in finding them to be appropriate for the task. The appellate court found that there was no evidence to suggest that the Federal Magistrate was in error in his assessment. The reasoning of the Federal Magistrate was careful and guarded, and the court found no grounds to suggest that the magistrate had erred in a manner that would warrant appellate intervention. As such, the appeal was dismissed.

In addition to dismissing the appeal, the court made an order for costs in favour of the father, to be paid by the mother. This order was subject to a stay of execution until the determination of the financial proceedings between the parties. The mother had conceded that if the appeal was unsuccessful, she could not resist an order for costs. Given that the appeal was indeed unsuccessful, the court proceeded to make the costs order as requested.

The final orders of the court were that the appeal be dismissed and that the mother pay the father’s costs of the appeal, with the execution of this order stayed until the financial proceedings between the parties were determined.

Orders

Orders of the court

That the appeal be dismissed.

That the mother pay the father’s costs of and incidental to the appeal as a agreed or assessed on a party and party basis and that execution of such order be stayed until determination of the financial proceedings between the parties.

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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