Pawley and Pawley (No 2) - [2017] FamCAFC 136

FAMILY COURT OF AUSTRALIA

PAWLEY & PAWLEY (NO 2)

[2017] FamCAFC 136

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Interim order permitting the father time with two young children – Where the order did not prevent the mother from remaining in a new location where she was living when proceedings commenced – Father argued primary judge erred in failing to order the mother to return to live in the area where she previously resided – Mother prepared to continue facilitating weekly time between father and children – No error by the primary judge – Appeal dismissed.

FAMILY LAW – CROSS-APPEAL – CHILDREN – Interim orders amended under r 16.05 of the Federal Circuit Court Rules 2001 (Cth) by imposing a requirement that the mother live in the area of her former place of residence for part of each week – Slip rule can be applied only where the proposed amendment is one about which no real difference of opinion can exist – As this condition was not met the primary judge erred in amending the order – Father correct in conceding the cross-appeal.

FAMILY LAW – APPEAL – COSTS – Offer of settlement – Both parties in difficult financial positions – No order as to costs – Costs certificates issued for both parties.

Family Law Act 1975 (Cth)

Federal Circuit Court Rules 2001 (Cth) r 16.05
Family Law Rules 2004 (Cth) r 22.22

C & S [1998] FamCA 66
DJL v The Central Authority (2000) 201 CLR 226
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 61 FCR 385
Graziers Association of New South Wales v Australian Legion of Ex-Serviceman and Women (1949) 49 SR (NSW) 300
L Shaddock & Associates Pty Ltd and Anor v The Council of the City of Parramatta (No. 2) (1982) 151 CLR 590
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and the Goldman Sachs Group Incand Ors (2007) 70 NSWLR 411
Owston Nominees No 2 Pty Ltd and Anor v Branir Pty Ltd and Ors (2003) 129 FCR 558
Raybos Australia Pty Ltd and Anor v Tectran Corportion Pty Ltd and Ors (1988) 77 ALR 190
Teo & Guan (2015) FLC 93-653

APPELLANT/RESPONDENT:

Mr Pawley

RESPONDENT/CROSS-APPELLANT/APPELLANT:

Ms Pawley

FILE NUMBER:

NCC

363

2017

APPEAL NUMBERS:	EA	33	of	2017
EA	54	of	2017

DATE DELIVERED:

22 June 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Kent & Loughnan JJ

HEARING DATE:

22 June 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 March 2017

LOWER COURT MNC:

[2017] FCCA 804

REPRESENTATION

COUNSEL FOR THE APPELLANT/RESPONDENT:

Mr Tregilgas

SOLICITOR FOR THE APPELLANT/RESPONDENT:

Bale Boshev Lawyers

COUNSEL FOR THE RESPONDENT/

CROSS-APPELLANT/APPELLANT:

Mr Levick

SOLICITOR FOR THE RESPONDENT/
CROSS-APPELLANT/APPELLANT:

Powe & White Family Lawyers

Orders

The appeal EA 33 of 2017 be dismissed.
The cross-appeal in EA 33 of 2017 be allowed.
The orders made by Judge Middleton on 4 May 2017 be set aside.
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.

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Details

Case: [2017] FamCAFC 136
Decision Date: 22 June 2017

CaseChat Overview and Summary

The appeal, EA 33 of 2017, was brought by the mother, challenging the interim parenting order made by the Family Court of Australia. The primary concern was the arrangement for the father to spend time with their two young children. The mother had moved to a new location when the proceedings commenced, but the interim order did not require her to return to her former residence. The father argued that the primary judge had erred by not ordering the mother to move back to the previous area. The mother, however, was prepared to continue facilitating weekly time with the father. The cross-appeal, EA 54 of 2017, was brought by the father, who sought an amendment to the interim order to require the mother to live in the area of her former residence for part of each week.

The court addressed two primary legal issues. Firstly, whether the primary judge had erred in not ordering the mother to return to the previous residence area, given that the interim order did not prevent her from remaining in the new location. Secondly, the court considered whether the primary judge had erred in amending the interim order under rule 16.05 of the Federal Circuit Court Rules 2001 (Cth) by imposing a requirement for the mother to live in the area of her former residence for part of each week. The court examined whether the proposed amendment was one about which no real difference of opinion could exist, as required by the rule.

The court found that the primary judge had not erred in not ordering the mother to return to the previous residence area, as the interim order did not prevent her from remaining in the new location, and she was prepared to facilitate weekly time with the father. However, the court determined that the primary judge had erred in amending the interim order to require the mother to live in the area of her former residence for part of each week. The court held that the proposed amendment did not meet the criteria of being one about which no real difference of opinion could exist, as required by rule 16.05. The father conceded that the cross-appeal was correct. The court dismissed the mother's appeal, allowed the father's cross-appeal, set aside the orders made by Judge Middleton on 4 May 2017, dismissed the father's appeal, made no order as to costs, and granted costs certificates to both parties.

Orders

Orders of the court

The appeal EA 33 of 2017 be dismissed.

The cross-appeal in EA 33 of 2017 be allowed.

The orders made by Judge Middleton on 4 May 2017 be set aside.

The appeal EA 54 of 2017 be dismissed.

There be no order as to costs.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the cross-appeal in EA 33 of 2017.

The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the cross-appeal in EA 33 of 2017.

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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