HENLEY & HENLEY - [2017] FamCAFC 142

FAMILY COURT OF AUSTRALIA

HENLEY & HENLEY

[2017] FamCAFC 142

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Where the primary judge made an erroneous finding as to the father’s residence – Where the mistaken fact did not lead into substantive error – Where the primary judge admitted into evidence and relied upon a psychiatrist’s report – Where the report was objected to in the father’s Case Outline – Where the primary judge did not raise with the father his objection to the report and whether the father wanted to challenge the evidence – Where it was not open to the primary judge to find that the father did not challenge the report – Where the Court cannot be satisfied that the errors did not cause the primary judge’s discretion to miscarry – Appeal allowed – Remitted for rehearing – No order as to costs – Costs certificates issued.

FAMILY LAW – APPEAL – Application to adduce fresh evidence – As matter remitted for rehearing unnecessary to consider application – Application dismissed.

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Re F: Litigants in Person Guidelines (2001) FLC 93-072

APPELLANT:

Mr Henley

RESPONDENT:

Ms Henley

FILE NUMBER:

ADC

1876

2014

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

20 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Adelaide

JUDGMENT OF:

Thackray, Strickland & Johnston JJ

HEARING DATE:

16 May 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 August 2016

LOWER COURT MNC:

[2016] FamCA 681

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr McQuade

Harry Alevizos

Orders

The Application in an Appeal filed on 21 March 2017 be dismissed.
The appeal be allowed.
Order 3(a) made by Berman J on 19 August 2016 be set aside.
The proceedings be remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Berman.
Pending further order of the Family Court of Australia, the appellant father spend time with the child N born in 2010 in accordance with Order 3(a) made by Berman J on 19 August 2016.
Each party bear their own costs.
The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her…

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 HENLEY & HENLEY

Details

AGLC: HENLEY & HENLEY [2017] FamCAFC 142
Case: [2017] FamCAFC 142
Decision Date: 20 July 2017

CaseChat Overview and Summary

In the appeal of Henley and Henley, the Full Court was called upon to review a decision made by Berman J in the Family Court concerning the time a child should spend with each parent. The father, the appellant, contested the primary judge's decision, arguing that the court had erred in its findings regarding his residence and in its handling of the introduction of a psychiatrist's report as evidence. The Court of Appeal needed to determine whether these errors influenced the outcome of the case.

The central legal issues addressed by the Court were whether the primary judge's erroneous findings regarding the father's residence led to substantive error in the case and whether the primary judge properly managed the introduction of the psychiatrist's report. The Court examined if the errors in admitting the report and not challenging its admissibility with the father amounted to procedural flaws that affected the case's outcome. Additionally, the Court had to consider if the errors caused the primary judge's discretion to miscarry.

The Court found that the primary judge had made an erroneous finding concerning the father's residence, which, while not leading to substantive error, combined with the procedural missteps in admitting the psychiatrist's report, created a scenario where the Court could not be satisfied that these errors did not influence the primary judge's discretion. Consequently, the appeal was allowed, and the case was remitted for rehearing by a different judge. The Court also dismissed the father's application to adduce fresh evidence, as it was deemed unnecessary given the case's remand for rehearing. Each party was ordered to bear their own costs, and the Court issued costs certificates for both parties to potentially recover costs from the Attorney-General.

Orders

Orders of the court

The Application in an Appeal filed on 21 March 2017 be dismissed.

The appeal be allowed.

Order 3(a) made by Berman J on 19 August 2016 be set aside.

The proceedings be remitted for rehearing by a judge of the Family Court of Australia other than the Honourable Justice Berman.

Pending further order of the Family Court of Australia, the appellant father spend time with the child N born in 2010 in accordance with Order 3(a) made by Berman J on 19 August 2016.

Each party bear their own costs.

The Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the rehearing.

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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