Lancaster & Danton - [2024] FedCFamC1A 232

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lancaster & Danton [2024] FedCFamC1A 232

Appeal from: Danton & Lancaster [2024] FedCFamC2F 1045

Appeal number: NAA 211 of 2024

File number: DGC 1527 of 2016

Judgment of: CHRISTIE J

Date of judgment: 11 December 2024

Catchwords:
FAMILY LAW – APPEAL – Parenting – Primary judge made orders changing the parent with whom the child lives – Where appellant argues primary judge erred in exercise of discretion – Where appellant asserts primary judge failed to give sufficient weight to expert evidence – Where appellant argues primary judge accorded insufficient weight to considerations in s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where appellant argues primary judge failed to accord sufficient weight to views of the child – Where appellant argues primary judge made errors of law – Where appellant asserts primary judge failed to give consideration to minimising risk of physical and psychological risk of harm to child – Where appellant asserts primary judge erred in failing to apply paramountcy principle – Primary judge not obliged to adopt recommendations of experts – Primary judge not bound to make orders which accorded with express views of child where to do so was contrary to child’s best interests– Orders made by primary judge were open on the evidence – Primary judge squarely considered best interests of the child and orders to protect child from physical and psychological harm – Primary judge correct in considering parenting capacity of parties – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs in fixed sum – Appeal dismissed.

FAMILY LAW – APPEAL – Application in an appeal – Application by appellant to adduce further evidence in appeal – Where appellant argues further evidence would demonstrate an improper exercise of discretion on behalf of the primary judge – Where further evidence does not demonstrate error – Application in an appeal dismissed.

FAMILY LAW – APPEAL – Application in an appeal – Application by respondent to adduce further evidence in appeal to respond to appellant’s application – Where respondent does not press application to adduce further evidence if appeal is dismissed – Unnecessary to address application where appeal is dismissed – Application in an appeal dismissed.

Legislation:
Family Law Act 1975 (Cth) s 93A and s 93A(2)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 36

Cases cited:
Andrew & Delaine [2009] FamCAFC 182

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

Hall & Hall (1979) FLC 90-713; [1979] FamCA 73

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Number of paragraphs: 71

Date of hearing: 25 November 2024

Place: Sydney

Solicitor for the Appellant: Bowlen Dunstan and Associates Pty

Counsel for the Respondent: Ms Mooney SC

Solicitor for the Respondent: SLF Lawyers

ORDERS

NAA 211 of 2024
DGC 1527 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF…

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 Lancaster & Danton

Details

AGLC: Lancaster & Danton [2024] FedCFamC1A 232
Case: [2024] FedCFamC1A 232
Decision Date: 11 December 2024

CaseChat Overview and Summary

The appeal before the Federal Circuit and Family Court of Australia involved a dispute between Ms Lancaster and Mr Danton regarding the custody of their child. The primary judge had made orders changing the parent with whom the child lived, and Ms Lancaster appealed, arguing that the primary judge had erred in exercising their discretion. Ms Lancaster claimed the primary judge failed to give sufficient weight to expert evidence, did not adequately consider the child's views, and made errors of law. She also argued that the primary judge failed to minimise the risk of physical and psychological harm to the child and did not apply the paramountcy principle correctly.

The court considered whether the primary judge had erred in their exercise of discretion, particularly regarding the weight given to expert evidence and the child's views. The court found that the primary judge was not obliged to adopt the recommendations of experts or make orders that accorded with the child's express views if doing so was contrary to the child's best interests. The court noted that the primary judge had considered the best interests of the child and the orders made were open on the evidence. The court also found that the primary judge had correctly considered the parenting capacity of both parties and the paramountcy principle.

The appeal was dismissed, and the court ordered that Ms Lancaster pay Mr Danton's costs of the appeal in a fixed sum of $14,000 within 28 days. Additionally, the court dismissed two applications to adduce further evidence in the appeal, finding that the further evidence did not demonstrate an error by the primary judge and that it was unnecessary to address the applications as the appeal was dismissed.

Orders

Orders of the court

NAA 211 of 2024

DGC 1527 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS LANCASTER

Appellant

AND:

MR DANTON

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 15 October 2024 is dismissed.

2. The Application in an Appeal filed 13 November 2024 is dismissed.

3. Appeal NAA 211 of 2024 is dismissed.

4. The appellant pay the respondent’s costs of the appeal in the fixed sum of $14,000 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:		Danton & Lancaster [2024] FedCFamC2F 1045
Appeal number:		NAA 211 of 2024
File number:	DGC 1527 of 2016
Judgment of:	CHRISTIE J
Date of judgment:	11 December 2024
Catchwords:	FAMILY LAW – APPEAL – Parenting – Primary judge made orders changing the parent with whom the child lives – Where appellant argues primary judge erred in exercise of discretion – Where appellant asserts primary judge failed to give sufficient weight to expert evidence – Where appellant argues primary judge accorded insufficient weight to considerations in s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where appellant argues primary judge failed to accord sufficient weight to views of the child – Where appellant argues primary judge made errors of law – Where appellant asserts primary judge failed to give consideration to minimising risk of physical and psychological risk of harm to child – Where appellant asserts primary judge erred in failing to apply paramountcy principle – Primary judge not obliged to adopt recommendations of experts – Primary judge not bound to make orders which accorded with express views of child where to do so was contrary to child’s best interests– Orders made by primary judge were open on the evidence – Primary judge squarely considered best interests of the child and orders to protect child from physical and psychological harm – Primary judge correct in considering parenting capacity of parties – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs in fixed sum – Appeal dismissed. FAMILY LAW – APPEAL – Application in an appeal – Application by appellant to adduce further evidence in appeal – Where appellant argues further evidence would demonstrate an improper exercise of discretion on behalf of the primary judge – Where further evidence does not demonstrate error – Application in an appeal dismissed. FAMILY LAW – APPEAL – Application in an appeal – Application by respondent to adduce further evidence in appeal to respond to appellant’s application – Where respondent does not press application to adduce further evidence if appeal is dismissed – Unnecessary to address application where appeal is dismissed – Application in an appeal dismissed.
Legislation:	Family Law Act 1975 (Cth) s 93A and s 93A(2) Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 36
Cases cited:	Andrew & Delaine [2009] FamCAFC 182 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63 Hall & Hall (1979) FLC 90-713; [1979] FamCA 73 Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs:	71
Date of hearing:	25 November 2024
Place:	Sydney
Solicitor for the Appellant:	Bowlen Dunstan and Associates Pty
Counsel for the Respondent:	Ms Mooney SC
Solicitor for the Respondent:	SLF Lawyers

NAA 211 of 2024 DGC 1527 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF…