Leland & Seward - [2008] FamCAFC 82

FAMILY COURT OF AUSTRALIA

LELAND & SEWARD

[2008] FamCAFC 82

FAMILY LAW - APPEAL – CHILDREN – CONSENT ORDERS – Where trial Judge made consent orders after 4 day hearing – Where mother appealed consent orders relating to children’s schooling – Whether mother’s consent to the orders was a real consent – Examination of transcript of trial in context – Where it was asserted mother’s consent was not a real consent but imposed on her by the trial Judge – Where mother was represented and personally signed the consent orders - Discussion of implied consent in Dobbs & Brayson(No 2) (2007) FLC 93-354 – No evidence of vitiation of mother’s consent.
FAMILY LAW - APPEAL – CHILDREN - Whether trial Judge made consent orders without sufficient evidence regarding the suitability, accessibility and cost associated with the children attending a particular Seventh Day Adventist school – Where submissions made by the independent children’s lawyer supporting the attendance of the children at the Seventh Day Adventist school - Where the issue of costs and transport arrangements were extensively ventilated before the trial Judge – No errors of fact identified - Appeal dismissed.
FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – Where mother sought to adduce further evidence as to lack of suitable transport arrangements for children’s travel to and from school and her lack of financial capacity to meet one half of the children’s school fees – Where, if available at the hearing, the evidence would not have affected the outcome before the trial Judge and where such evidence was controversial - Application to adduce further evidence dismissed.

COSTS – Where appellant mother was wholly unsuccessful in the appeal – Where unmeritorious appeal justified a departure from s 117(1) of the Family Law Act 1975 (Cth) - Appeallant mother to pay father’s costs of and incidental to the appeal as agreed and in default of agreement as assessed.

Family Law Act 1975 (Cth) - s 60CC, s 117, Division VII

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Dobbs & Brayson(No 2) (2007) FLC 93-354; (2008) 38 Fam LR 95
Harvey v Phillips (1956-57) 95 CLR 235

Smith & Smith (1984) FLC 91-512

APPELLANT:

Ms Leland

RESPONDENT:

Mr Seward

FILE NUMBER:

DGF

2360

2003

APPEAL NUMBER:

2007

DATE DELIVERED:

20 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, May & Boland JJ

HEARING DATE:

12 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT CONSENT ORDERS:

2 August 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Glover

SOLICITOR FOR THE APPELLANT:

Julie Taylor

COUNSEL FOR THE RESPONDENT:

Mr Davis

SOLICITOR FOR THE RESPONDENT:

Alan J Munt

Orders made 12 February 2008

That the application in a case to adduce fresh evidence filed 20 December 2007 be refused.
That the appeal be dismissed.
That the appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

IT IS…

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 Leland & Seward

Details

AGLC: Leland & Seward [2008] FamCAFC 82
Case: [2008] FamCAFC 82
Decision Date: 20 June 2008

CaseChat Overview and Summary

The appeal, brought by Ms Leland, contests consent orders made by the trial judge in relation to the schooling of her children. The dispute revolves around the terms of the consent orders, specifically regarding the children's enrolment in a Seventh Day Adventist school. The matter was heard in the Family Court of Australia. Ms Leland, the mother, argues that her consent to the orders was not genuine and was influenced by the trial judge, a claim she maintains despite being represented and signing the consent orders herself. Additionally, she contests the trial judge's decision regarding the suitability, accessibility, and cost of the Seventh Day Adventist school, asserting that there was insufficient evidence to support the orders.

The court examined the transcript of the trial to determine whether Ms Leland's consent was genuine, considering the case of Dobbs & Brayson (No 2). The court found no evidence that Ms Leland's consent was vitiated, and it dismissed her appeal on that ground. Regarding the trial judge's decision on the school, the court found no errors of fact and concluded that the issues of costs and transport arrangements had been adequately addressed. Therefore, the appeal concerning the consent orders for the children's schooling was dismissed. The court also dismissed the mother's application to adduce further evidence, as it was unlikely to have affected the outcome and was deemed controversial.

As Ms Leland was wholly unsuccessful in her appeal, the court ruled that she should pay her former husband's costs of and incidental to the appeal, as per section 117 of the Family Law Act 1975. The appeal was unmeritorious, justifying a departure from the usual requirement for agreement on costs. Consequently, Ms Leland was ordered to pay the father's costs of the appeal as agreed, or in default of agreement, as assessed.

Orders