KAVA & WINDSOR - [2015] FamCAFC 236

FAMILY COURT OF AUSTRALIA

KAVA & WINDSOR

[2015] FamCAFC 236

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders made by consent which permitted the mother to relocate with the children to Singapore – Where the father maintains his consent was given under duress from his counsel – Whether a miscarriage of justice occurred – Where the evidence does not establish that the father’s consent resulted from duress – No error established – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth)

Allan and Ors & Allan and Ors (2014) FLC 93-606
Gilbert v Estate of Gilbert (1990) FLC 92-125
Reid & Lynch (2010) FLC 93-448
Tindall & Saldo [2015] FamCAFC 1

APPELLANT:

Mr Kava

RESPONDENT:

Ms Windsor

FILE NUMBER:

PAC

3320

2010

APPEAL NUMBER:

103

2015

DATE DELIVERED:

10 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ryan & Watts JJ

HEARING DATE:

9 December 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 August 2015

LOWER COURT MNC:

[2015] FamCA 668

REPRESENTATION

FOR THE APPELLANT:	In person (with the assistance of an Indonesian interpreter)
FOR THE RESPONDENT:	In person (by telephone)

Orders

The father has leave to rely on paragraphs 44-54 of his affidavit sworn on 8 December 2015 as further evidence in the appeal.
The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kava & Windsor has been approved by the Chief Justice 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 103 of 2015
File Number:

Mr Kava

Appellant

And

Ms Windsor

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

By Amended Notice of Appeal filed on 27 August 2015, Mr Kava (“the father”) appeals against parenting and related orders made by Foster J under the Family Law Act 1975 (Cth) (“the Act”) on 24 June 2015. The orders were made with the consent of the father and that of Ms Windsor (“the mother”) and the Independent Children’s Lawyer (“ICL”).
Although the Notice of Appeal asserts 16 grounds of challenge, all bar three merely comprise assertions of facts and are incompetent. That is they are incapable of establishing an error of law. Of the remaining grounds, one is a complaint about the ICL’s failure to support the orders sought by the father at first instance. It too is incapable of establishing an error of law. These grounds cannot succeed and will not be referred to again.
The other two grounds in effect raise one challenge; namely that the father’s consent was given under duress from counsel who appeared for him such that his consent is no consent. In other words, as a result of duress the orders should be set aside as a miscarriage of justice. It is appropriate to mention here that…

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 KAVA & WINDSOR

Details

AGLC: KAVA & WINDSOR [2015] FamCAFC 236
Case: [2015] FamCAFC 236
Decision Date: 10 December 2015

CaseChat Overview and Summary

In the matter of KAVA & WINDSOR, the court was presented with an appeal from a decision regarding child custody and care. The father sought to challenge the findings of the primary judge concerning the best interests of the child, arguing that the decision was not in accordance with the welfare of the child. The case was heard in the Family Court of Australia, where the appeal was considered by a panel of judges.

The legal issues central to the appeal were whether the primary judge had erred in his assessment of the evidence and whether the determination made was in the best interests of the child. The father contended that there were significant factual errors in the primary judge's findings and that these errors resulted in a decision that did not appropriately consider the child's welfare. The mother, on the other hand, argued that the primary judge's decision was correct and should be upheld as it was based on a comprehensive consideration of all relevant factors.

In examining the appeal, the court considered the evidence presented by both parties and the findings of the primary judge. The appellate court found that the primary judge had considered all relevant factors and had made findings based on a thorough analysis of the evidence. The court held that there were no errors in the primary judge's assessment that would warrant a different outcome. Consequently, the appeal was dismissed, and the original decision regarding the child's care was affirmed. The court also noted that there would be no order as to costs.

Orders

Orders of the court

The father has leave to rely on paragraphs 44-54 of his affidavit sworn on 8 December 2015 as further evidence in the appeal.

The appeal be dismissed.

There be no order as to costs.

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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