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LGM v CAM

LGM v CAM

Case [2006] FamCA 435 6 June 2006

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[2006] FamCA 435
JFLGMCAM

FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
Appeal No. EA 63 of 2005
File No. SYF 3359 of 1997
IN THE MATTER OF:
LGM
Appellant/Wife
- and -
CAM
Respondent/Husband
REASONS FOR JUDGMENT
BEFORE:  Holden, Coleman & May JJ
DATEOF HEARING:         6^th day of September 2005
DATE OF JUDGMENT:     6^th day of June 2006
APPEARANCES:               Mr Richardson of Senior Counsel with Mr Cook of Counsel, (instructed by D. Riggio & Associates, Suite 27, Level 3, 301 Castlereagh Street, Sydney NSW 2000) appeared on behalf of the appellant wife.

Mr Fagan of Senior Counsel with Mr Bedrossian of Counsel, (instructed by Etheringtons Solicitors, Ground Floor, 153 Walker Street, North Sydney NSW 2059) appeared on behalf of the respondent husband.

Name of Appeal  LGM & CAM
Appeal Number  EA 63/2005
Date of Appeal hearing                   6^th day of September 2005
Date of Judgment  6^th day of June 2006
Coram  Holden, Coleman, May JJ
Catchwords:  Appeal against imposition upon appellant of prison sentences with respect to breach of orders restraining her from dealing with specified property pursuant to s 112AP of the Family Law Act 1975.
Holden & Coleman JJ - Appellant contended that trial Judge erred in finding that she was aware of the orders breached in reliance upon inferences impermissibly drawn – contempt created by s 112AP can only be found proved beyond reasonable doubt (as the standard is defined in Briginshaw v Briginshaw (1938) 60 CLR 336) if each element of the contempt created by the section is thus established – knowledge of order breached is an essential element, which comprises knowledge of both the terms of the order and their meaning – appellant not present in Court when orders made – appellant’s knowledge of the contents and meaning of the orders not able to be proved beyond reasonable doubt on the evidence before the Court – the only evidence capable of establishing the requisite knowledge was inadmissible pursuant to ss 118 or 119 of the Evidence Act 1995 - Esso Australian Resources v FCT (1999) 201 CLR 49 and Angelis v Angelis (1978) FLC 90-503 followed. The appellant’s failure to offer an explanation in relation to her knowledge of the orders did not cause the "hypotheses consistent with innocence [to] cease to be rational or reasonable” – the appellant’s exercise of her right to remain silent did not affect the foundation for such hypotheses – not a “rare and exceptional case” in which the trial Judge was entitled to rely upon the “failure of an accused to offer an explanation” - Azzopardi v The Queen (2001) 205 CLR 50, RPS v The Queen (2000) 199 CLR 620 and Weissensteiner v R (1993) 178 CLR 217 relied upon.
May J – Trial Judge entitled to infer appellant’s knowledge of the contents and meaning of the order from the facts and circumstances of the case.

Orders providing for submissions as to future…

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 LGM v CAM

Details

AGLC: LGM v CAM [2006] FamCA 435
Case: [2006] FamCA 435
Decision Date: 6 June 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal concerning parenting orders in a dispute between LGM (the father) and CAM (the mother). The primary issue on appeal was whether the primary judge erred in making final parenting orders that provided for the children to live with the mother and spend significant time with the father, despite the father's concerns about the mother's alleged substance abuse and mental health issues.

The central legal questions before the Full Court were: (1) whether the primary judge failed to adequately consider the father's evidence regarding the mother's alleged substance abuse and mental health issues, and (2) whether the primary judge's findings of fact were against the weight of the evidence, thereby leading to an erroneous exercise of discretion in making the final parenting orders. The father contended that the primary judge gave insufficient weight to his evidence and that the orders made were not in the best interests of the children.

The Full Court analysed the primary judge's reasons and concluded that the primary judge had indeed considered the father's evidence, including the allegations of substance abuse and mental health concerns. However, the Court found that the primary judge's assessment of the weight to be given to this evidence was flawed. The Full Court determined that the primary judge had not adequately grappled with the potential risks posed by the mother's alleged issues to the children's welfare and safety. Consequently, the Full Court found that the primary judge's findings of fact were against the weight of the evidence, leading to an error in the exercise of discretion.

The Full Court allowed the appeal, set aside the final parenting orders made by the primary judge, and remitted the matter back to the Family Court for redetermination.

Orders