LANKESTER & CRIBB

Case [2018] FamCAFC 60


FAMILY COURT OF AUSTRALIA

LANKESTER & CRIBB [2018] FamCAFC 60
FAMILY LAW – APPEAL – PARENTING – Where the primary judge made orders changing the child’s primary residence, providing for a six-month moratorium on the time the child spends with the mother and providing for a supervised time regime ultimately leading to unsupervised time – Adequacy of reasons – Whether the primary judge properly applied s 60CC of the Family Law Act 1975 (Cth) – Whether the orders were not supported by the evidence – Where Order 7 was made in error and will be set aside – Whether the primary judge’s failure to make specific orders for changeovers made the orders for time unenforceable – Where orders as to changeovers are consequential or machinery orders – Whether, in light of the mother’s poor financial circumstances, the primary judge erred by ordering the mother to pay for supervision – Where the mother did not adduce any evidence nor provide any submissions to show she was not in a position to meet the costs of supervision – Appeal allowed in part – Application for costs dismissed.
Family Law Act 1975 (Cth) ss 60CC, 65DAA
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Kaljo and Kaljo (1978) FLC 90-445; [1978] FamCA 46
McDonald and McDonald (1976) FLC 90-047; [1976] FamCA 29
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Ravasini and Ravasini (1983) FLC 91-312; [1982] FamCA 62
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
APPELLANT: Ms Lankester
RESPONDENT: Mr Cribb
INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland
FILE NUMBER: BRC 11371 of 2010
APPEAL NUMBER: NOA 35 of 2017
DATE DELIVERED: 6 April 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 9 February 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 10 July 2017
LOWER COURT MNC: [2017] FCCA 1629

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr George
SOLICITOR FOR THE APPELLANT: James Noble Law
COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele
SOLICITOR FOR THE RESPONDENT: Parker Family Law
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Did not participate

Orders

  1. The appeal is allowed in part.

  2. Order 7 of the orders made by Judge Purdon‑Sully on 10 July 2017 is set aside.

  3. The appeal is otherwise dismissed.

  4. The Application in an Appeal filed on 29 January 2018 is dismissed.

  5. The respondent father’s application for costs is dismissed.

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 Lankester & Cribb 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

Continue reading LANKESTER & CRIBB

Sign in free to access the full text

Details
AGLC
LANKESTER & CRIBB [2018] FamCAFC 60
Case
[2018] FamCAFC 60
Decision Date

CaseChat Overview and Summary

The case of Lankester & Cribb involved an appeal against parenting orders made by Judge Purdon-Sully in the Family Court of Australia. The central dispute centred around the primary residence of the child, the amount of time the child would spend with each parent, and the supervision of these interactions. The father, the respondent in this case, appealed the primary judge’s orders, arguing that they were inadequately reasoned, not supported by the evidence, and financially burdensome to the mother.

The primary legal issues before the court were whether the primary judge had adequately considered the relevant statutory provisions, specifically section 60CC of the Family Law Act 1975 (Cth), in making the orders. The court was also required to determine if the primary judge erred in failing to specify the details of the changeovers, and whether the order for the mother to pay for supervision was appropriate given her financial situation.

In its judgment, the court found that while the primary judge had considered the relevant statutory provisions, the reasoning provided was insufficient. The court agreed with the father that Order 7, which was made in error, should be set aside. However, the court dismissed the father’s contention that the orders for time were unenforceable due to the lack of specific changeover orders, finding these to be consequential or machinery orders. Additionally, the court found that the mother had not provided sufficient evidence or submissions to show she could not meet the costs of supervision, and thus the order for her to pay for supervision was upheld.

The appeal was allowed in part, with Order 7 being set aside, and the appeal was dismissed in all other respects. The court also dismissed the father's application for costs. The mother’s application in an appeal was similarly dismissed.

Orders

Orders of the court

1.

The appeal is allowed in part.

2.

Order 7 of the orders made by Judge Purdon‑Sully on 10 July 2017 is set aside.

3.

The appeal is otherwise dismissed.

4.

The Application in an Appeal filed on 29 January 2018 is dismissed.

5.

The respondent father’s application for costs is dismissed.

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

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.