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Pascoe & Larsen (No 4)

Pascoe & Larsen (No 4)

Case [2023] FedCFamC1A 127 9 August 2023

Parental Responsibility

Best Interests of the Child

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascoe & Larsen (No 4) [2023] FedCFamC1A 127

Appeal from: Pascoe & Larsen [2023] FedCFamC2F 392

Appeal number(s): NAA 64 of 2023

File number(s): WOC 655 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the application before the primary judge was brought on urgently for hearing because the child faced medical and dental treatment about which the parties could not agree – Where the primary judge ordered the mother to have sole parental responsibility for the child’s health and medical treatments and for the appellant to pay her costs of the application – Procedural fairness – Allegations of actual and apprehended bias – Challenges to factual findings – Whether the orders are in the best interests of the child – No error established – Appeal dismissed – Appellant to pay the costs of the respondent in a fixed sum.

Legislation: Family Law Act 1975 (Cth) Pt VII, Div 12A, ss 69ZN, 117(2A)

Cases cited:
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Elias & Elias (No. 2) [2019] FamCAFC 92

Forster & Forster [2016] FamCAFC 143

Galea v Galea (1990) 19 NSWLR 263

Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 85

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Lenova & Lenova (Costs) [2011] FamCAFC 141

Mallory & Mallory [2020] FamCAFC 62

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

Number of paragraphs: 88

Date of hearing: 14 July 2023

Place: Sydney

Counsel for the Appellant: Litigant in person

Counsel for the Respondent: Ms Kennedy

Solicitor for the Respondent: Broun Abrahams Burreket

Solicitor for the Independent Children’s Lawyer: Venus & Smart
ORDERS

NAA 64 of 2023
WOC 655 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PASCOE

Appellant

AND:
MS LARSEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

ALDRIDGE J

DATE OF ORDER:

9 august 2023

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $9,900.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)),…

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 Pascoe & Larsen (No 4)

Details

AGLC: Pascoe & Larsen (No 4) [2023] FedCFamC1A 127
Case: [2023] FedCFamC1A 127
Decision Date

CaseChat Overview and Summary

The case of Pascoe & Larsen (No 4) involves an appeal by the father, Mr Pascoe, against interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 February 2023. The primary judge had ordered the mother to have sole parental responsibility for making decisions concerning the child's health and any medical treatment she may require and that the father is to pay the mother's costs of this Application on an indemnity basis. The father raised 16 grounds of appeal, which were repetitious and involved significant overlapping.

The court examined the father's contentions regarding procedural unfairness and bias. It found that there was no procedural unfairness as the primary judge had read the evidence and was asking the parties to articulate their cases. The court also found that the primary judge was not biased in his approach to the father, as he had considered and evaluated the evidence and formed a view based on it.

The court also dismissed the father's challenge to factual findings, stating that questions asked during submissions are not findings of fact. The court further found that the orders were in the child's best interests and that the primary judge's costs order was not unreasonable or plainly wrong.

As the appeal was wholly unsuccessful, the court ordered that the father pay the mother's costs fixed in the sum of $9,900. The court certified that the preceding 88 numbered paragraphs were a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.

Orders