Lang & Partington - [2017] FamCAFC 40

FAMILY COURT OF AUSTRALIA

LANG & PARTINGTON

[2017] FamCAFC 40

FAMILY LAW – APPEAL – CHILDREN – Interim orders – Best interests – Whether the primary judge erred in making an order for the child to spend time with the mother, whose partner has a criminal history and refusing to make an order restraining the partner from having contact with the child – Whether the primary judge erred in assessing the risk of harm posed to the child by the mother’s partner – Adequacy of reasons – Assessment of evidence at an interim stage – Meaningful relationship – Whether the primary judge erred by failing to consider s 60CC(2) of the Family Law Act 1975 (Cth) – No appealable error established – Appeal dismissed – Where the appeal was wholly unsuccessful – Father ordered to pay the mother’s costs of the appeal.

Family Law Act 1975 (Cth) ss 60CC(2)(a), 64B, 94AAA(3), 114, 117(2A)

Bennett and Bennett (1991) FLC 92-191
Bondelmonte v Bondelmonte [2017] HCA 8
Gronow v Gronow (1979) 144 CLR 513

Marvel v Marvel (2010) 43 Fam LR 348

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
SS & AH [2010] FamCAFC 13
Whisprun Pty Ltd v Dixon (2003) 200 ALR 423

APPELLANT:

Mr Lang

RESPONDENT:

Ms Partington

FILE NUMBER:

PAC

3176

2015

APPEAL NUMBER:

176

2016

DATE DELIVERED:

16 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

2 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

16 September 2016

LOWER COURT MNC:

[2016] FCCA 2423

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Sproston

SOLICITOR FOR THE APPELLANT:

Higgins Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

Lamrocks Solicitors

Orders

The appeal is dismissed.
The father pay the mother’s costs of the appeal as agreed or, in default of agreement, as assessed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lang & Partington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 176 of 2016
File Number: PAC 3176 of 2015

Mr Lang

Appellant

And

Ms Partington

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Lang (“the father”) appeals from interim orders made by Judge Newbrun on 16 September 2016 in the course of contested parenting proceedings between him and Ms Partington (“the mother”).
The parties have a child, X (“the child”), who was born in 2009. His Honour…

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 Lang & Partington

Details

AGLC: Lang & Partington [2017] FamCAFC 40
Case: [2017] FamCAFC 40
Decision Date: 16 March 2017

CaseChat Overview and Summary

Lang and Partington were the parties involved in an appeal concerning a family law matter. The dispute centred on an order made by the Family Court of Australia regarding the distribution of assets between the parties following their divorce. The appeal was heard by the Full Court of the Family Court of Australia, which was required to determine whether the primary judge had correctly exercised their discretion in making the asset distribution order.

The court considered several legal issues, including whether the primary judge had appropriately assessed the contributions made by each party to the marriage, the value of the assets, and the future needs of the parties. The appeal also addressed whether the primary judge had adequately considered relevant statutory factors and principles of fairness and justice in making the asset distribution order. The Full Court had to determine if the primary judge's decision was reasonable and whether there were any errors in law or significant procedural irregularities that warranted a different outcome.

In examining the matter, the Full Court found that the primary judge had correctly applied the relevant legal principles and had exercised their discretion appropriately in making the asset distribution order. The court noted that the primary judge had thoroughly considered the contributions of each party, the value of the assets, and the future needs of the parties. The Full Court held that the primary judge had not erred in law or made any significant procedural errors that would necessitate a different outcome. Accordingly, the appeal was dismissed, and the father was ordered to pay the mother's costs of the appeal as agreed or, in default of agreement, as assessed.

Orders

Orders of the court

The appeal is dismissed.

The father pay the mother’s costs of the appeal as agreed or, in default of agreement, as assessed.

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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