Lawson & Hill (No 2) - [2017] FamCAFC 243

FAMILY COURT OF AUSTRALIA

LAWSON & HILL (NO. 2)

[2017] FamCAFC 243

FAMILY LAW – APPEAL – PARENTING – Where the father appeals orders for supervised time – Challenges to weight given to expert evidence – Exercise of discretion – Findings open on the evidence – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Provision of transcript – Where the fact that the appeal concerns parenting issues weighs in favour of the provision of transcript – Where the transcript is not necessary to proceed with the appeal – Where the grounds of appeal challenged the exercise of the primary judge’s discretion – Application dismissed.

FAMILY LAW – COSTS – Wholly unsuccessful – Impecuniosity is not a bar to a costs order – Costs ordered.

Family Law Act 1975 (Cth) ss 94(2A), 117

Edwards v Noble (1971) 125 CLR 296
Forbes & Bream [2008] FamCAFC 189
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Muldoon & Carlyle (2012) FLC 93-513
Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550
Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542

APPELLANT:

Mr Lawson

RESPONDENT:

Ms Hill

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

1626

2012

APPEAL NUMBER:

2017

DATE DELIVERED:

15 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Foster JJ

HEARING DATE:

15 November 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 December 2016

LOWER COURT MNC:

[2016] FamCA 1147

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Hodgson

SOLICITOR FOR THE APPELLANT:

King & York Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Giacomo

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Lawrence

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The Application in an Appeal filed on 22 September 2017 is dismissed.
Appeal EA 15 of 2017 against the orders of Watts J made on 23 December 2016 is dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,061 such costs to be paid within forty two days of today’s date.

IT IS FURTHER ORDERED BY CONSENT:

Vary order 8.2 made by Watts J on 23 December 2016 to read:
For four hours on four days in the second half of the fourth term school holidays such days to be nominated by the father to the mother on 28 days’ notice.
Vary order 14.3 made by Watts J on 23 December 2016 to read:
The child’s time with the father is unable to occur as a result of either of the reasons referred to in order 14.1 or 14.2 then the mother shall arrange for

make-up time to occur on the following weekend but if that is not possible, as soon as it can practicably be arranged, but unless the parties agree in writing, not added to the time the child is already to spend with the father.

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 Lawson & Hill (No 2)

Details

AGLC: Lawson & Hill (No 2) [2017] FamCAFC 243
Case: [2017] FamCAFC 243
Decision Date: 15 November 2017

CaseChat Overview and Summary

The appeal in Lawson & Hill (No 2) involved the father, who sought to appeal parenting orders made by the Family Court of Australia. The orders in question pertained to the supervised visitation of the child with the father. The appeal was heard by the Family Court of Australia, which had to consider the father's challenge to the weight given to expert evidence by the primary judge and the exercise of discretion in making the orders. The mother responded to the appeal and filed an application for the provision of a transcript, which was dismissed by the court.

The legal issues before the court involved the weight given to expert evidence and the exercise of discretion by the primary judge. The father argued that the primary judge had erred in giving excessive weight to expert evidence and in exercising their discretion. The court had to determine whether the findings of the primary judge were open on the evidence and whether the exercise of discretion was proper. Additionally, the mother's application for the provision of a transcript was considered, as the appeal involved parenting issues.

The court dismissed the appeal and found that the findings of the primary judge were open on the evidence. The court also found that the exercise of discretion by the primary judge was proper, and that the father's challenge to the weight given to expert evidence was without merit. The court further dismissed the mother's application for the provision of a transcript, as the transcript was not necessary to proceed with the appeal. Finally, the court ordered the father to pay the mother's costs of and incidental to the appeal in the sum of $6,061.

The court further varied the orders made by the primary judge to clarify the arrangements for supervised visitation and make-up time. The father was ordered to pay the mother's costs of and incidental to the appeal, and the form of the order was subject to the entry of the order in the Court's records.

Orders

Orders of the court

The Application in an Appeal filed on 22 September 2017 is dismissed.

Appeal EA 15 of 2017 against the orders of Watts J made on 23 December 2016 is dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,061 such costs to be paid within forty two days of today’s date.

IT IS FURTHER ORDERED BY CONSENT:

Vary order 8.2 made by Watts J on 23 December 2016 to read:

For four hours on four days in the second half of the fourth term school holidays such days to be nominated by the father to the mother on 28 days’ notice.

Vary order 14.3 made by Watts J on 23 December 2016 to read:

The child’s time with the father is unable to occur as a result of either of the reasons referred to in order 14.1 or 14.2 then the mother shall arrange for

make-up time to occur on the following weekend but if that is not possible, as soon as it can practicably be arranged, but unless the parties agree in writing, not added to the time the child is already to spend with the father.

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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