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Leighton & Carey

Leighton & Carey

Case [2010] FamCAFC 94 26 May 2010

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FAMILY COURT OF AUSTRALIA

LEIGHTON & CAREY

[2010] FamCAFC 94

FAMILY LAW - APPEAL – CHILD ABUSE – Mistake of fact – Trial judge found child had been abused – By process of elimination trial judge found the father was the only adult with the opportunity to engage in such behaviour – Such a finding was inconsistent with the evidence – Evidence that child spent time with maternal grandmother’s partner and mother’s new partner – Finding fundamental to the entire decision – Appeal allowed – Matter remitted for re-hearing.

FAMILY LAW - APPEAL – DISCRETIONARY MATTERS – Whether conduct of the trial and the father’s representative resulted in an unfair trial or unfair result – Whether trial judge focussed on personalities rather than evidence – Grounds not persuasive – No merit to appellant’s submissions.

FAMILY LAW - APPEAL – COSTS – Respondent and Independent Children’s Lawyer applied for certificates – Appeal succeeded on error of law – Certificates granted to respondent and Independent Children’s Lawyer.

Family Law Act 1975 (Cth)
Family Law Rules 2004

B and B (1993) FLC 92-357
B & J [2009] FamCAFC 103
De Winter and De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499
In the marriage of Schorel (1990) FLC 92‑144
M v M (1988) 166 CLR 69
Nudd v the Queen (2006) 225 ALR 161
OP v TP and Another (Conduct of Counsel) (2003) 30 Fam LR 281

APPELLANT:

Mr Leighton

RESPONDENT:

Ms Carey

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11394

2007

APPEAL NUMBER:

103

2008

DATE DELIVERED:

26 May 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray and Strickland JJ

HEARING DATE:

15 February 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 October 2008

LOWER COURT MNC:

[2008] FamCA 868

REPRESENTATION

SOLICITOR FOR THE APPELLANT:	In person
SOLICITOR FOR THE RESPONDENT:	In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal is allowed.
The applications of the mother and the father be remitted for re-hearing in the Family Court of Australia at Brisbane.
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 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 against the parenting orders.
The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 and the Independent Children’s Lawyer in respect of the costs…

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 Leighton & Carey

Details

AGLC: Leighton & Carey [2010] FamCAFC 94
Case: [2010] FamCAFC 94
Decision Date: 26 May 2010

CaseChat Overview and Summary

In the appeal of Leighton & Carey, the Full Court of the Family Court of Australia was called upon to review a decision made by a trial judge in a family law matter concerning allegations of child abuse. The trial judge found that the child had been abused and, through a process of elimination, concluded that the father was the only adult with the opportunity to engage in such behaviour. The father contested the decision on appeal, arguing that the finding was inconsistent with the evidence presented, particularly given the child's interactions with other adults, such as the maternal grandmother's partner and the mother's new partner.

The legal issues before the court involved the correctness of the trial judge's findings regarding the abuse and the potential unfairness of the trial process. The father contended that the trial judge had misdirected himself by focusing on the personalities involved rather than the evidence. Additionally, the father claimed that the conduct of the trial and his representative's conduct led to an unfair trial or result. The court, however, found that the father's grounds for appeal were not persuasive and that the trial judge had not focussed on personalities but rather on the evidence before him.

The Full Court allowed the appeal on the basis that the finding of abuse was inconsistent with the evidence. This finding was fundamental to the trial judge's entire decision. Consequently, the matter was remitted for re-hearing in the Family Court of Australia at Brisbane. Additionally, the court granted costs certificates to the respondent and the Independent Children's Lawyer in accordance with the Federal Proceedings (Costs) Act 1981, as the appeal had succeeded on an error of law.

Orders

Orders of the court

The appeal is allowed.

The applications of the mother and the father be remitted for re-hearing in the Family Court of Australia at Brisbane.

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 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 against the parenting orders.

The Court grants to the respondent and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the re-hearing of the application.

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.

Citations

AGLC Citation

Leighton & Carey [2010] FamCAFC 94

Most Recent Citation

Froth & Schneider [2011] FamCA 378

Cases citing this decision · 15 of 15 shown

BRONWELL & BRONWELL
[2018] FamCA 1041 Para 2

…In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms:…
RADA & GORNALL
[2017] FamCA 381 Para 7

…Where there is a dispute, it is important to keep in mind the role of this Court in relation to findings of abuse or violence. In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse. In my view the same considerations apply to allegations of other forms…
Rilak & Tsocas (No 8)
[2015] FamCA 1235

…neral for the Commonwealth of Australia (2003) FLC 93-143 Jarrott & Jarrott [2012] FamCAFC 29 Kingsford & Kingsford [2012] FamCA 889 Leighton & Carey [2010] FamCAFC 94 In the Marriage of Lenehan (1987) FLC 91-814 M v M (1988) 166 CLR 69 Mains & Redden (2011) FLC 93-478 McCall & Clark (2009) FLC 93-405 In the Marriag…
ROTH & ROTH
[2014] FamCA 207

…w v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 G & C [2006] FamCA 994 Leighton & Carey [2010] FamCAFC 94 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Pavli & Beffa (2013) 48 Fam LR 677 APPLICANT: Ms Roth RESPONDENT: Mr Roth INDEPENDENT CHILDREN’S LAWYER: Maureen Po…
LETH & YAYATHI
[2014] FamCA 4 Para 4

…In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms: Principles relevant to findings of sexual abuse 28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (199…
Ellis and Massimino-Ellis
[2013] FamCA 738

…A, 65D, 65DAA, 65DAC Briginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 G & C [2006] FamCA 994 Leighton & Carey [2010] FamCAFC 94 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 APPLICANT: Mr Ellis RESPONDENT: Ms Massimino-Ellis INDEPENDENT CHILDREN’S LAWYER: NSW…
Deniz and Yilmaz
[2013] FamCA 252

…iginshaw v Briginshaw (1938) 60 CLR 336 Champness & Hanson (2009) FLC 93-407 G & C [2006] FamCA 994 Johnson v Page (2007) FLC 93-344 Leighton & Carey [2010] FamCAFC 94 M v M (1988) 166 CLR 69 McCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518…
Leth and Yayathi
[2012] FamCA 1031 Para 1

…In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms: Principles relevant to findings of sexual abuse 28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC…
Mingotti and Papadakis and Anor
[2012] FamCA 339 Para 32

…xt of sexual abuse, in Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms: Principles relevant to findings of sexual abuse 28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In…
MAURER & VAN LAREN
[2012] FamCA 8 Para 1

…In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about sexual abuse in the following terms:…
Standen and Standen
[2011] FamCA 966 Para 1

…In Leighton & Carey [2010] FamCAFC 94 the Full Court discussed the principles relevant to findings about abuse in the following terms: Principles relevant to findings of sexual abuse 28.In considering this appeal it is important we refer to the principles relevant to a finding of sexual abuse. In B and B (1993) FLC…
Carone and Yantis
[2011] FamCA 853

…Leighton & Carey [2010] FamCAFC 94…
PAVEL & PAVEL
[2011] FamCA 1066

…cCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 Champness & Hanson (2009) FLC 93-407 Leighton & Carey [2010] FamCAFC 94 B and B (1988) FLC 91-957 M v M (1988) 166 CLR 69 TWN & PAQ (2005) FLC 93-230; (2005) 34 Fam LR 190 Kennon & Kennon (1997) FLC 92-757; 22 Fam LR 1 In…
Tomas And Anor and Murray
[2011] FamCA 641

…cCall & Clark (2009) FLC 93-405 Mazorski & Albright (2007) 37 Fam LR 518 G & C [2006] FamCA 994 Champness & Hanson (2009) FLC 93-407 Leighton & Carey [2010] FamCAFC 94 Briginshaw v Briginshaw (1938) 60 CLR 336…
Froth & Schneider
[2011] FamCA 378

…Kent & Shaw [2010] FamCA 587; Leighton & Carey [2010] FamCAFC 94; Marvel & Marvel (No. 2) [2010] FamCAFC 101;…

View all 15 citing cases →

Cases cited in this decision · 9 of 9 shown

B & J
[2009] FamCAFC 103 Para 4

…iscussion of the principles relating to findings made in earlier proceedings see in In the marriage of Schorel (1990) FLC 92‑144 and see also B & J [2009] FamCAFC 103…
Leighton and Carey
[2008] FamCA 868

…[2008] FamCA 868…
Nudd v The Queen
[2006] HCA 9 Para 5

…With respect to the conduct of the father’s solicitor, we refer to the well known authorities of Nudd v R (2006) 225 ALR 161 and OP v TP and Another (Conduct of Counsel) (2003) 30 Fam LR 281.…
M v M
[1988] HCA 68 Para 2

…In M v M (1988) 166 CLR 69 the High Court said at 76: …it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for…
Storie v Storie
[1945] HCA 56 Para 2

…In De Winter and De Winter (1979) FLC 90-605 the High Court was concerned with a challenge to the primary judge’s finding in relation to the credibility of the evidence given by the husband. After referring to House v The King (1936) 55 CLR 499, Gibbs J (who dissented in relation to the outcome of t…
Briginshaw v Briginshaw
[1938] HCA 36 Para 5

…is clear from the law that a Court should not make such a finding unless it can be satisfied according to the civil standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, that is, that findings against a person accused of such matters should be made only upon convincing evidence and upon a firm satisfaction…
Briginshaw v Briginshaw
[1938] HCA 34 Para 5

…hat a Court should not make such a finding unless it can be satisfied according to the civil standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, that is, that findings against a person accused of such matters should be made only upon convincing evidence and upon a firm satisfaction.…
House v R
[1936] HCA 40 Para 2

…a challenge to the primary judge’s finding in relation to the credibility of the evidence given by the husband. After referring to House v The King (1936) 55 CLR 499, Gibbs J (who dissented in relation to the outcome of the appeal) at 78,091 – 78,092 said: It is apparent from this statement, and is clear law, that a…
House v The King
63 WN 176

…B and B (1993) FLC 92-357 B & J [2009] FamCAFC 103 De Winter and De Winter (1979) FLC 90-605 House v The King (1936) 55 CLR 499 In the marriage of Schorel (1990) FLC 92‑144 M v M (1988) 166 CLR 69 Nudd v the Queen (2006) 225 ALR 161 OP v TP and Another (Conduct of Counsel) (2003) 30 Fam LR 281…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
1 mention (from Para 2)
Family Law Rules 2004 (Cth)
1 mention
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 3)