J and R - [2008] FamCAFC 61

FAMILY COURT OF AUSTRALIA

J & R

[2008] FamCAFC 61

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – With whom a child spends time – With whom a child lives – Relocation – Parenting issues presented for trial – Parents decided that after the Federal Magistrate had heard some expert evidence the matter would proceed by way of written submissions – Whether a miscarriage of discretion – On appeal the mother challenged the orders in respect of the extension of the time the child spends with the father on weekends and the prevention of her relocating with the child – Argued by the mother on appeal that the Federal Magistrate unduly elevated evidence of a child and adolescent psychiatrist, over all other evidence, which he then inappropriately regarded as untested, and thus wrongly diminished its significance – Whether certain opinions and observations were wrongly given weight as if they were opinions of an expert for the purposes of s 79 Evidence Act 1995 (Cth) – No merits in grounds of appeal – Appeal dismissed

Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth), s 60CC, s 117(2A)

M & K [2007] FMCAfam 26
Norbis v Norbis (1986) FLC 91‑712

APPELLANT:

MS J

RESPONDENT:

MR R

APPEAL NUMBER:

2007

FILE NUMBER:

SYM

5566

2006

DATE DELIVERED:

9 May 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

WARNICK, BOLAND and WATTS JJ

HEARING DATE:

10 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

18 April 2007

LOWER COURT MNC:

[2007] FMCAfam 181

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr A Jamieson with Ms Conte-Mills

SOLICITOR FOR THE APPELLANT:

Zerrin Jamieson

ADVOCATE FOR THE RESPONDENT:

In person

Orders

That the appeal be dismissed.
That there be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym J & R is approved 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 58 of 2007
File Number: SYM 5566 of 2006

MS J

Appellant

And

MR R

Respondent

REASONS FOR JUDGMENT

When parenting issues, of narrow compass but of potentially wide consequences, presented for trial before Altobelli FM, the parents Ms J and Mr R:
8.…decided that after I heard the evidence of Dr [S], and each counsel had the opportunity to ask her questions, the matter would then proceed by way of submissions only.
What his Honour made of the consequences of this course in his reasons for judgment is at the centre of this, the mother’s appeal. The argument is that the learned Magistrate unduly elevated the evidence of Dr S, a child and adolescent psychiatrist, over all other evidence, which he then inappropriately regarded as untested, and thus wrongly diminished its significance.
There are seven grounds in the mother’s further amended Notice of Appeal. Though we will say something of each of them,…

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 J and R

Details

AGLC: J and R [2008] FamCAFC 61
Case: [2008] FamCAFC 61
Decision Date: 9 May 2008

CaseChat Overview and Summary

The case before the court involved a dispute between J and R regarding parenting arrangements. The matter was heard in the Federal Circuit Court of Australia, with Dr S providing expert evidence on behalf of R. The mother, J, appealed the decision of the Federal Magistrate, who had granted sole parental responsibility to R and made specific orders regarding the child's residence. The court was required to determine whether the Federal Magistrate erred in his assessment and weight given to the evidence, particularly in relation to the mother’s evidence being described as untested and untried.

The key legal issue was whether the Federal Magistrate erred in his assessment and weight given to the evidence, specifically concerning the mother's evidence. The court examined whether the description of the mother’s evidence as untested and untried was accurate and whether this influenced the Magistrate's decision. The court noted that while the evidence was indeed uncontested, the mother's proposals for the child's residence were unclear and lacked specificity, which contributed to the Magistrate's preference for the more certain evidence provided by Dr S.

The court concluded that although the Federal Magistrate’s observations about the untested nature of the mother's evidence might not have been strictly accurate, this did not amount to an error that warranted appeal. The evidence was uncontested rather than untested, and the Magistrate had the opportunity to challenge the assessments within Dr S's report. The mother's evidence lacked the specificity needed to counter Dr S's recommendations. Therefore, the court dismissed the appeal and made no order as to costs.

The court dismissed the appeal and made no order as to costs. This decision affirmed the Federal Magistrate's findings and the parenting orders made in favour of R.

Orders

Orders of the court

That the appeal be dismissed.

That there be no order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In addressing the complaint in this ground, it is helpful to consider whether there was conflict between the evidence of Dr S and that in the mother’s case. On more than one occasion we invited Mr Jamieson, counsel for the mother on appeal (and at trial), to indicate any matter of fact upon which Dr S’s evidence was preferred over that of the mother. No examples were given. Thus, while it is clear that the learned Magistrate placed reliance on Dr S’s evidence, including her opinions as to the appropriate parenting arrangements and in this sense those opinions prevailed over the mother’s proposals and arguments in support, Dr S’s evidence about any matter of fact did not compete with the evidence of the mother about any matter of fact. Passages of his Honour’s reasons to which Mr Jamieson drew attention include:8.…This meant that whilst all of the evidence was important, even they [the parties] recognised that Dr [S]’s evidence was going to be very important.22.…the parties chose to conduct the matter on the basis of examining Dr [S] only, and otherwise making submissions based on the evidence, including the untested evidence of the parties and their witnesses. (emphasis added)25.…Dr [S]’s evidence is the only tried, tested and uncontroverted evidence in this case. I must give it the substantial weight it deserves having regard to this.26.…The difficulty, of course, is that none of this evidence was tested … In our view, the learned Magistrate’s observations are not strictly untrue, though they may represent an insufficient recognition of the status of the evidence of each of the parties - not just that of the mother - namely, not so much that that evidence was untested, as that it was uncontested. However, that omission of express recognition of the uncontested state of each party’s evidence does not necessarily amount to appellable error. Moreover, the following observation of the Federal Magistrate was unchallenged in this appeal:23.…I observe that in this case Dr [S]’s report and evidence was tested by each of the parties, but she remained resolute in her recommendations. Insofar as Dr [S]’s report depended on assessments of the parents or other witnesses, each party had the opportunity to, firstly, challenge those assessments and, secondly, to actually call the parents or other witnesses so that the assessments could be found deficient. The parties chose not to. Mr Jamieson argued that the learned Magistrate’s description of the evidence of the mother, as untested and untried, may have led him to reject her evidence in relation to particular matters. He pointed especially to the mother’s evidence about exactly where she might reside. While the Federal Magistrate did record details of the mother’s proposals and the advantages she suggested they would bring and did comment that none of that evidence had been tested, he went on to say:26.… in any event, the mother’s proposal as to where she was going to live in Sydney was in a state of flux. Whilst it was clear she was no longer proposing to move to Sydney’s northern suburbs, it was by no means clear whether she was proposing to move to Sydney’s far south, or […], somewhat further north but still in Sydney’s southern suburbs. This meant I had no clear evidence about where [A] would live, where he would go to school, what his curricular and extra-curricular activities would be etc. Against all of this uncertainty of course, I had the very clear and certain evidence of Dr [S] that [A] needed to reside within an hour of [the town N] for the reasons discussed above.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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