LANKESTER & CRIBB - [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

2010

APPEAL NUMBER:

NOA

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

The appeal is allowed in part.
Order 7 of the orders made by Judge Purdon‑Sully on 10 July 2017 is set aside.
The appeal is otherwise dismissed.
The Application in an Appeal filed on 29 January 2018 is dismissed.
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

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: LANKESTER & CRIBB [2018] FamCAFC 60
Case: [2018] FamCAFC 60
Decision Date: 6 April 2018

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

The appeal is allowed in part.

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

The appeal is otherwise dismissed.

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

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

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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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