Lamereaux & Noirnot - [2008] FamCAFC 22

FAMILY COURT OF AUSTRALIA

LAMEREAUX & NOIROT

[2008] FamCAFC 22

FAMILY LAW - APPEAL – CHILDREN - RELOCATION – Where mother applied to relocate child’s to France to live with her – Whether error by the trial Judge in accepting and relying upon limited portions of the evidence of the mother’s treating psychologist – Where psychologist gave evidence that the mother could cope if the Court was to reconsider the issue of relocation when the child was aged ten, eleven or twelve – Where trial Judge accepted the psychologist’s contested diagnosis of the mother’s condition and prognosis – Trial Judge erred in accepting limited portions of the psychologist’s evidence.

FAMILY LAW - APPEAL – CHILDREN - RELOCATION – PROCEDURAL FAIRNESS – Whether absence of procedural fairness occasioned by the trial Judge relying on evidence of an expert given in other proceedings – Where parties were not given the opportunity to make submissions to the trial Judge on use of evidence from a previous matter – Discussion of limits of judicial notice and the use of extraneous material by a judicial officer – Whether trial Judge may have reached a different conclusion if he had not considered expert’s evidence in another case – Trial Judge erred in incorporating the expert’s evidence in other proceedings into current proceedings – Appeal allowed – Application remitted for rehearing.

FAMILY LAW - COSTS – Appeal successful – Certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to each party for the appeal and re-trial.

Evidence Act1995 (Cth) – Part 4.2, s 144

Family Law Act 1975 (Cth) – Part VII

Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9

A and A [2004] FamCA 456
Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492
Bolitho v Cohen (2005) FLC 93-224
British Thompson Houston Company Limited v British Insulated and Helsby Cables Limited [1924] 2 Ch 160
Cavanett v Chambers [1968] SASR 97
Gordon M Jenkins & Associates Pty Ltd v Coleman (1989) 23 FCR 38
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
In the Marriage of Dean (1988) 94 FLR 32
Re K (1994) FLC 92-461; (1994) 17 Fam LR 537
Scott v The President, Councillors and Ratepayers of the Shire of Numurkah (1954) 91 CLR 300

Byrne, D M and Heydon, J D, Cross on Evidence, 3rd Australian ed, Butterworths, 1986

Butterworths, Cross on Evidence, vol 1 (at 24-02-08) at [3035], [33525]

APPELLANT:

Mr Lamereaux

RESPONDENT:

Ms Noirot

FILE NUMBER:

SYF

2470

2006

APPEAL NUMBER:

2007

DATE DELIVERED:

5 March 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May & Boland JJ

HEARING DATE:

7 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 April 2007

LOWER COURT MNC:

[2007] FamCA 422

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kearney

SOLICITOR FOR THE APPELLANT:

Barkus Edwards Doolan

COUNSEL FOR THE RESPONDENT:

Ms Messner

SOLICITOR FOR THE RESPONDENT:

Stuart Fowler & Associates

Orders

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: Lamereaux & Noirnot [2008] FamCAFC 22
Case: [2008] FamCAFC 22
Decision Date: 5 March 2008

CaseChat Overview and Summary

In the matter of Lamereaux & Noirnot, the parties were involved in a dispute concerning the relocation of their child to France. The case was heard and decided in the Family Court of Australia. The mother sought to relocate the child, which was opposed by the father. The appeal was brought before the court to address concerns regarding the trial judge's handling of evidence and procedural fairness during the original proceedings.

The legal issues at the heart of this appeal centred on whether the trial judge had erred in his handling of evidence, particularly the limited use of evidence provided by the mother's treating psychologist. The court had to determine if the trial judge's acceptance of contested aspects of the psychologist's evidence constituted an error. Furthermore, the appeal questioned whether the trial judge's reliance on expert evidence from a previous proceeding without allowing the parties to make submissions on its use was a breach of procedural fairness.

The court found that the trial judge had indeed erred in selectively accepting portions of the psychologist's evidence and in incorporating expert evidence from a previous case without proper procedural steps. The court held that these errors likely influenced the trial judge's decision and thus warranted a rehearing of the matter. Consequently, the appeal was allowed, and the case was remitted for rehearing before a different judge in the Sydney Registry of the Court. Additionally, the court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), recognising the success of the appeal and the costs incurred in the proceedings.

Orders

Orders of the court

That the appeal against the orders of the Honourable Justice Le Poer Trench made 26 April 2007 be allowed.

That the respondent mother’s amended application for final orders be remitted for rehearing in the Sydney Registry of the Court before a Judge other than the Honourable Justice Le Poer Trench as soon as possible.

That 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 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 in respect of the costs incurred by her in relation to the appeal.

The Court grants to each of the parties 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

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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