Pagett & Pagett - [2009] FamCAFC 24

FAMILY COURT OF AUSTRALIA

PAGETT & PAGETT

[2009 ] FamCAFC 24

FAMILY LAW - APPEAL – Application to adduce further evidence refused (CDJ v VAJ (1998) 157 ALR 686).

FAMILY LAW - APPEAL – Delay – Not established that the delay of one year between the trial and judgment provided the basis for appeal in the circumstances of this case.

FAMILY LAW - APPEAL – Parenting proceedings – Not established that the Federal Magistrate erred in declining to adopt the recommendations of the Family Consultant – Not established that the Federal Magistrate erred in making an order for equal shared parental responsibility – Not established that the Federal Magistrate erred in failing to give sufficient weight to the wishes of the child – Not established that the Federal Magistrate erred in failing to give sufficient weight to the practical difficulties of the orders – Not established that the Federal Magistrate failed to give adequate reasons.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 157 ALR 686
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
R v Maxwell (1998) 217 ALR 452

APPELLANT:

Mrs PAGETT

RESPONDENT:

Mr PAGETT

FILE NUMBER:

NCM

519

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

12 February 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

STEVENSON J

HEARING DATE:

3 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 March 2008

LOWER COURT MNC:

[2008] FMCAfam 265

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Maclean & Curtis Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission of New South Wales

Orders

That the appeal is dismissed.
That there is no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Pagett and Pagett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 71 of 2008
File Number: NCM 519 of 2006

Mrs PAGETT

Appellant

And

Mr PAGETT

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal against orders made by Federal Magistrate Coakes on 14 March 2008. These orders related to the parties’ two children:
The child P born in 2000 (8) and
The child E born in 2003 (5).
Essentially, the orders provided that the children live with the father and spend time with the mother for half of all school holidays and, during school terms, in a three week cycle as follows:
Week 1 – Monday afternoon until Wednesday morning
Week 2 – Friday afternoon until Tuesday morning
Week 3 – Friday afternoon until Tuesday morning
The orders provided, further, that the children spent four additional days per school term with the mother.
In the event of a successful appeal, the mother sought a re-exercise of the discretion. She proposed orders to the effect that the children live with her and spend time with the…

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 Pagett & Pagett

Details

AGLC: Pagett & Pagett [2009] FamCAFC 24
Case: [2009] FamCAFC 24
Decision Date: 12 February 2009

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Pagett & Pagett was brought before the court to address a parenting dispute. The primary judge had previously made orders concerning the custody and care of the parties' child, which the appellant sought to appeal. The appellant contested the primary judge's decisions regarding shared parental responsibility, the weight given to the child's wishes, and the practical difficulties of the orders.

The legal issues before the court were whether the primary judge erred in declining to adopt the recommendations of the Family Consultant, whether the order for equal shared parental responsibility was appropriate, whether the primary judge failed to give sufficient weight to the child's wishes, and if the primary judge adequately considered the practical difficulties of the orders. Additionally, the court considered whether the delay between the trial and the judgment provided a basis for appeal and whether the reasons provided by the primary judge were sufficient.

The court found that the primary judge had not erred in any of the contested areas. The court determined that the delay between the trial and the judgment did not provide a basis for appeal. The court further found that the primary judge's reasons were comprehensive and adequately addressed the considerations required under the Family Law Act. The court concluded that the appeal was without merit and dismissed it, with no order as to costs.

Orders

Orders of the court

That the appeal is dismissed.

That there is no order as to costs.

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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