Lund & Lund - [2018] FamCAFC 112

FAMILY COURT OF AUSTRALIA

LUND & LUND

[2018] FamCAFC 112

FAMILY LAW – APPEAL – PARENTING – Where the trial judge appropriately applied the principle in Rice and Asplund (1979) FLC 90-725 – Where the trial judge took the evidence of the appellant at its highest – Where the trial judge took into account the relevant factors in s 60CC of the Family Law Act 1975 (Cth) and gave them adequate weight – Where the trial judge provided adequate reasons for her decision – Where there is no merit in the grounds of appeal – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondents sought costs in the event that the appeal was unsuccessful – Where the appellant opposed such an order on the basis of her poor financial circumstances – Where impecuniosity is not a bar to an order for costs being made when there are other circumstances justifying such an order – Costs ordered as sought by the respondents.

Family Law Act 1975 (Cth) ss 60CC and 117
Federal Circuit Court of Australia Act 1999 (Cth) s 17A

Bennett and Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) 53 FamLR 157
D & D (Costs) (No. 2) (2010) FLC 93-435
Gronow & Gronow (1979) 144 CLR 513
Poisat & Poisat (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363
Walter & Walter [2016] FamCAFC 56

APPELLANT:

Ms Lund

RESPONDENTS:

Mrs S & Mr D Lund

FILE NUMBER:

MLC

1495

2011

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

25 June 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

26 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 September 2017

LOWER COURT MNC:

[2017] FCCA 2643

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Strong

SOLICITOR FOR THE APPELLANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENTS:

Dr R Smith

SOLICITOR FOR THE RESPONDENTS:

Tait Legal

Orders

The time for the appellant mother to file a summary of argument be extended nunc pro tunc to 26 February 2018.
The appeal be dismissed.
The appellant mother pay the costs of the respondent grandparents of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000].

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 Lund & Lund 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 77 of 2017
File Number: MLC 1495 of 2011

Ms…

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 Lund & Lund

Details

AGLC: Lund & Lund [2018] FamCAFC 112
Case: [2018] FamCAFC 112
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of Lund & Lund involved an appeal by the appellant mother against a decision made by the trial judge concerning parenting arrangements. The trial judge had ruled in favor of the respondent grandparents, who were the maternal grandparents of the child in question. The Family Court of Australia heard the appeal, and the primary focus was on the appropriate application of the relevant principles and factors as outlined in the Family Law Act 1975 (Cth). The court was tasked with determining whether the trial judge had appropriately applied the principle in Rice and Asplund and whether the judge had adequately considered the evidence and relevant factors in section 60CC of the Act.

The legal issues before the court included whether the trial judge had appropriately applied the principle from Rice and Asplund, whether the judge had accurately assessed the appellant's evidence, and if the relevant factors under section 60CC were given adequate weight. Furthermore, the court needed to assess if the trial judge's reasons for the decision were sufficient and if there were any grounds for the appeal to be successful. The court found that the trial judge had indeed applied the relevant principles correctly and that the judge had thoroughly evaluated the evidence and factors, providing adequate reasons for the decision. The court concluded that there was no merit in the grounds of appeal.

The court dismissed the appeal and ordered that the time for the appellant to file a summary of argument be extended to 26 February 2018. Additionally, the appellant was ordered to pay the respondent grandparents' costs of and incidental to the appeal, fixed at ten thousand dollars. This order was made despite the appellant's financial difficulties, as the court determined that other circumstances justified the imposition of costs. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The time for the appellant mother to file a summary of argument be extended nunc pro tunc to 26 February 2018.

The appeal be dismissed.

The appellant mother pay the costs of the respondent grandparents of and incidental to the appeal fixed in the sum of TEN THOUSAND DOLLARS [$10,000].

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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