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Jollie & Dysart

Jollie & Dysart

Case [2014] FamCAFC 149

Appeal

Jurisdiction

Issue Estoppel

Specific Performance

Admissibility of Evidence

Expert Evidence

Standing

Family Law

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FAMILY COURT OF AUSTRALIA

JOLLIE & DYSART

[2014] FamCAFC 149

FAMILY LAW – APPEAL – CHILDREN – with whom a child lives – where orders were made that the parties’ child live with the father and spend limited time with the mother – where those orders represented a very significant change to the erstwhile care arrangements for the child – where the mother appeals on a number of grounds – where the mother challenges the weight given by the trial judge to a range of evidence, in particular the opinions of a single expert – whether the trial judge erred in the weight given to the single expert’s evidence – where no error demonstrated – where the mother also contends that the trial judge’s discretion miscarried in the making of a recovery order that was stayed for up to three and a half years – whether the trial judge’s discretion miscarried – where that issue is tied to a further challenge to the adequacy of her Honour’s reasons – where her Honour’s reasons do not reveal the path that led to her Honour’s determination that the recovery order was presently in the child’s best interests – where her Honour’s reasons do not reveal the basis for a determination that the recovery order would be in the child’s best interests at any point in the next three and a half years – error demonstrated – appeal allowed in part – where the recovery order and ancillary orders set aside – where remaining substantive orders remain in force.

FAMILY LAW – APPEAL – STAY – where the appellant mother applied for a stay of the substantive parenting orders – where that application was dismissed – where the mother appeals that order – where the appeal against the substantive parenting orders has largely failed – no error demonstrated – appeal dismissed.

Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343
CDJ v VAJ (1998) 197 CLR 172
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) 48 Fam LR 651
French & Fetala [2014] FamCAFC 57
House v The King (1936) 55 CLR 499
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Hugh & Sawer and Anor [2011] FamCA 48
Minister for Immigration and Multicultural and Indigenous Affairs v B and Anor (2004) 219 CLR 365
Norbis v Norbis (1986) 161 CLR 513
Smith and Smith (1994) FLC 92-488

APPELLANT:

Ms Jollie

RESPONDENT:

Mr Dysart

INDEPENDENT CHILDREN'S LAWYER:

Legal Aid NSW

FILE NUMBER:

NCC

318

2012

FIRST APPEAL NUMBER:

158

2013

SECOND APPEAL NUMBER:

160

2013

DATE DELIVERED:

15 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Murphy JJ

HEARING DATE:

3 February 2014

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.

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Details

AGLC: Jollie & Dysart [2014] FamCAFC 149
Case: [2014] FamCAFC 149
Decision Date

CaseChat Overview and Summary

The appeal against the substantive parenting orders made by Cleary J was allowed in part. The court found that the trial judge did not err in citing the repealed version of s 60CC(3)(c) of the Family Law Act 1975 (Cth). The court found that the trial judge did not err in attributing weight to the evidence of the single expert psychiatrist, Dr K. The court found that the trial judge's reasons did not reveal the path that led to her determination that the recovery order was presently in the child's best interests. The court found that the trial judge's reasons did not reveal the basis for a determination that the recovery order would be in the child's best interests at any point in the next three and a half years. The court found that the recovery order and ancillary orders were set aside. The remaining substantive orders remain in force. The appeal against the refusal to stay the operation of the substantive parenting orders was dismissed.

Orders