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Lysons & Lysons

Lysons & Lysons

Case [2019] FamCAFC 29 21 February 2019

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FAMILY COURT OF AUSTRALIA

LYSONS & LYSONS

[2019] FamCAFC 29

FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Whether the primary judge erred by refusing the appellant’s application to change the child’s surname – Whether the primary judge failed to take into account relevant considerations – Where the appellant did not make submissions on those considerations at trial – No error established.

FAMILY LAW – APPEAL – CHILDREN – Order for baptism – Where the primary judge made an order for the child to be baptised if it is in the view of a priest that it is appropriate for the baptism to occur – Where neither party nor the Independent Children’s Lawyer expressly sought such an order – Whether the prospect of the making of such an order was sufficiently foreshadowed – Procedural unfairness – Appealable error established – Order for baptism set aside.

Australian Constitution s 116
Family Law Act 1975 (Cth) ss 60CC, 61B, 61DA, 64B, 65D, 65DAC(2), 70NFG(2), 112AP
Judiciary Act 1903 (Cth) s 78B

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Doherty & Doherty [2016] FamCAFC 182
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
National Companies and Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29
Reynolds & Sherman (2015) FLC 93-659; [2015] FamCAFC 128
Reynolds & Sherman [2016] FamCAFC 240
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
White v Overland [2001] FCA 1333

APPELLANT:

Ms B Lysons

RESPONDENT:

Ms T Lysons

INTERVENER:

Attorney-General of the Commonwealth

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

12213

2016

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

21 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ryan, Aldridge & Watts JJ

HEARING DATE:

11 February 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2018

LOWER COURT MNC:

[2018] FCCA 2043

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Clutterbuck with Mr Walsh

SOLICITOR FOR THE APPELLANT:

Turnbull Mylne

COUNSEL FOR THE RESPONDENT:

Mr Alexander

SOLICITOR FOR THE RESPONDENT:

Quinn Family Law

COUNSEL FOR THE INTERVENER:

Mr Howe QC with Ms Watson (by telephone)

SOLICITOR FOR THE INTERVENER:

Australian Government Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Haddrick with Ms Fotheringham

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders made 11 February 2019

IT IS ORDERED:

The appellant have leave to file and rely upon a Further Amended Notice of Appeal.
That the Attorney-General of the Commonwealth have leave to withdraw as a party to the appeal.
That the appeal against Orders 12, 13 and 36 of the orders made in the Federal Circuit Court of Australia on 31 July 2018 is allowed.
That Orders 12, 13 and 36 of the orders made on 31 July 2018 be set aside.

IT IS ORDERED BY CONSENT:

That upon X Lysons (“the Child”) commencing…

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.

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Details

AGLC: Lysons & Lysons [2019] FamCAFC 29
Case: [2019] FamCAFC 29
Decision Date: 21 February 2019

CaseChat Overview and Summary

The appeal was brought by the father against a decision of a Family Court judge regarding their child. The father sought to change the child's surname and also challenged a provision in the orders that allowed the child to be baptised if a priest deemed it appropriate. The appeal was heard in the Family Court of Australia.

The court was required to determine whether the primary judge erred in refusing the father's application to change the child's surname. It also needed to consider whether the primary judge failed to take into account relevant considerations in making the order for the child's baptism. The father had not made submissions on the relevant considerations for the surname change at the trial, but he argued that the baptism order was made without sufficient procedural fairness.

The court found that no error was established in the refusal to change the child's surname as the father had not made the relevant submissions at trial. However, it was determined that the baptism order was made without sufficient procedural fairness as neither party nor the Independent Children’s Lawyer expressly sought such an order, and the prospect of such an order being made was not adequately foreshadowed. Consequently, the court set aside the order for the child's baptism.

The final orders of the court were that the appeal was dismissed in relation to the surname change, but the order for the child's baptism was set aside due to procedural unfairness.

Orders