Lancefield & Lancefield (No 2) - [2020] FamCAFC 312

FAMILY COURT OF AUSTRALIA

LANCEFIELD & LANCEFIELD (NO. 2)

[2020] FamCAFC 312

FAMILY LAW – APPEAL – PARENTING – RESIDENCE – With whom the children should live – Findings that the father was coercive and controlling led to a change in children’s residence – Misstatement of evidence – Errors of fact influenced findings adverse to the father – Children’s views – Consideration of “impressions” of views compared with stated views – Relevant considerations overlooked – Appeal allowed – Certain orders set aside – Matter remitted for rehearing – Costs certificates issued to parties and the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) Pt VII
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Boensch v Pascoe (2019) 375 ALR 15; [2019] HCA 49
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40

APPELLANT:

Mr Lancefield

RESPONDENT:

Ms Lancefield

INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

FILE NUMBER:

WOC

562

2018

APPEAL NUMBER:

EAA

105

2020

DATE DELIVERED:

22 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

7 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

29 June 2020

LOWER COURT MNC:

[2020] FCCA 1674

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levick

SOLICITOR FOR THE APPELLANT:

Powe & White Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Wong

SOLICITOR FOR THE RESPONDENT:

Rossi Simicic Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr White

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Acorn Lawyers

Orders

The appeal be allowed in part.
Orders 6, 7, 8, 9, 10, 21, 22, 23 and 25 of the orders dated 29 June 2020 be set aside.
The proceedings be remitted for rehearing by a judge other than the primary judge.
The appeal be otherwise dismissed.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 this appeal.
The Court grants to the respondent 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 this appeal.
The Court grants to the Independent Children’s Lawyer 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 Independent…

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

Case: [2020] FamCAFC 312
Decision Date: 22 December 2020

CaseChat Overview and Summary

Lancefield & Lancefield (No 2) involved an appeal against family law orders made in the Federal Circuit and Family Court of Australia. The appeal was lodged by the father, Lancefield, against the mother, also Lancefield, with the Family Court of Australia. The central issue was the validity and fairness of certain orders made regarding the custody and care of the couple's children. The father contested several specific orders, arguing they were based on errors of law or were not in the best interests of the children.

The court was tasked with determining whether the orders made by the primary judge were correct in law and whether they appropriately considered the best interests of the children. The court had to assess whether there were any procedural irregularities or evidential errors that might have affected the outcome of the case. The court also needed to evaluate the weight and credibility of expert evidence presented by both parties, particularly concerning the children's welfare and the parents' capabilities.

The court found that there were indeed errors in the primary judge's consideration of certain evidence and in the application of legal principles. These errors were significant enough to affect the outcome of the case and warranted a rehearing. The court held that the appeal should be allowed in part, setting aside certain orders and remitting the proceedings for rehearing by a different judge. The court dismissed the appeal in all other respects and made orders for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for both parties and the Independent Children's Lawyer, subject to the Attorney-General's discretion in authorising payments.

Orders

Orders of the court

The appeal be allowed in part.

Orders 6, 7, 8, 9, 10, 21, 22, 23 and 25 of the orders dated 29 June 2020 be set aside.

The proceedings be remitted for rehearing by a judge other than the primary judge.

The appeal be otherwise dismissed.

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to the provisions of 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 this appeal.

The Court grants to the respondent 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 this appeal.

The Court grants to the Independent Children’s Lawyer 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 Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

The Court grants to each party and the Independent Children’s Lawyer 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 party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing of these proceedings.

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

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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