Lokare & Baum - [2016] FamCAFC 135

FAMILY COURT OF AUSTRALIA

LOKARE & BAUM

[2016] FamCAFC 135

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders – Where the grounds of appeal challenge the exercise of discretion and the weight given to factors – Whether the trial judge adequately considered s 61F of the Family Law Act 1975 (Cth) – Where the benefit of the child having a connection with her Aboriginal culture was not in dispute – Where the trial judge weighed this against other relevant considerations such as the child’s age and issues of practicality – Where the trial judge declined to order a Family Report at an interim stage – Where the orders made were open on the evidence before the trial judge – No error established – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal was wholly unsuccessful – Costs orders made.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(3)(h),(i), (g) and (m), 60CC(6), 61F, 117

Browne & Keith [2015] FamCAFC 143

Donnell & Dovey (2010) FLC 93-428
Maldera & Orbel (2014) FLC 93-602
Metwally v University of Wollongong (1985) 60 ALR 68
Wacando v The Commonwealth (1981) 148 CLR 1

APPELLANT:

Mr Lokare

RESPONDENT:

Ms Baum

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

FILE NUMBER:

DNC

2013

APPEAL NUMBER:

106

2015

DATE DELIVERED:

28 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

27 April 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 June 2015

LOWER COURT MNC:

[2015] FamCA 521

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Fowler

SOLICITOR FOR THE RESPONDENT:

Haydon Fowler Corbett Jessop

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Bankstown Family Law

Orders

The appeal against the orders of Rees J made on 5 June 2015 is dismissed.
The Application in an Appeal filed on 12 April 2016 to adduce further evidence is dismissed.
The father pay the mother’s costs of and associated with the appeal, such costs to be agreed or assessed and paid within forty-two (42) days of agreement or assessment.
The father pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,356, such sum to be paid within forty-two (42) days of these orders.

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 Lokare & Baum 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 Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF…

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 Lokare & Baum

Details

AGLC: Lokare & Baum [2016] FamCAFC 135
Case: [2016] FamCAFC 135
Decision Date: 28 July 2016

CaseChat Overview and Summary

The matter of Lokare & Baum involved an appeal against interim parenting orders that were made by Rees J on 5 June 2015. The appeal concerned the exercise of discretion in making those orders and the weight given to various factors. The appeal was primarily concerned with whether the trial judge adequately considered section 61F of the Family Law Act 1975 (Cth), particularly in the context of the benefit to the child of maintaining a connection with her Aboriginal culture. The father argued that this factor was not properly balanced against other considerations, such as the child's age and practical issues. The trial judge also declined to order a Family Report at the interim stage, which the father argued was a significant oversight.

The court examined the trial judge's exercise of discretion and whether it was open to the trial judge to make the orders in question, given the evidence presented. The court found that the trial judge had considered the relevant factors, including the benefit of the child having a connection with her Aboriginal culture, and balanced these against other considerations. The court held that the orders were within the range of reasonable outcomes and that there was no error in the exercise of discretion by the trial judge. Consequently, the appeal was dismissed.

In addition to dismissing the appeal, the court addressed the costs associated with the appeal. Given that the appeal was wholly unsuccessful, the father was ordered to pay the mother's costs of and associated with the appeal, to be agreed or assessed within forty-two days. The father was also ordered to pay the Independent Children's Lawyer's costs of the appeal in the sum of $4,356, to be paid within forty-two days of the orders. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal against the orders of Rees J made on 5 June 2015 is dismissed.

The Application in an Appeal filed on 12 April 2016 to adduce further evidence is dismissed.

The father pay the mother’s costs of and associated with the appeal, such costs to be agreed or assessed and paid within forty-two (42) days of agreement or assessment.

The father pay the Independent Children’s Lawyer’s costs of the appeal in the sum of $4,356, such sum to be paid within forty-two (42) days of these orders.

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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