Payne & Payne - [2009] FamCAFC 13

FAMILY COURT OF AUSTRALIA

PAYNE & PAYNE

[2009] FamCAFC 13

FAMILY LAW – PARENTING – APPEAL FROM FAMILY COURT – Where orders were made providing that the children live with the mother and that the mother have sole parental responsibility – Where orders were made that the father spend supervised time with the children one weekend each four weeks – Where the time spent with the children was conditional and required compliance with a medical treatment regime – Father had a history of mental ill health – History of family violence - Physical safety and emotional wellbeing of children whilst in the fathers care a concern – Appellant submitted that there was bias against him by the expert and the Independent Children’s Lawyer – Appellant submitted that the trial Judge discriminated against him because of his mental health issues – Appellant submitted that the orders were impractical

FAMILY LAW – PARENTING – Appeal against orders that the children live with the mother and that she have sole parental responsibility dismissed – Appeal against orders made in relation to the fathers time with the children allowed in part and varied – Variation of parenting order giving the father other times for telephone contact with the children on special occasions

FAMILY LAW – PROPERTY – APPEAL FROM FAMILY COURT – Where the orders made provided that the parties’ net assets be divided between them as to 62.5 per cent to the wife and 37.5 per cent to the husband – Where the appellant submitted that his hobby being gambling should not have been taken into account as an add back – Where the appellant submitted that a criminal compensation payment made in favour of the wife should have been taken into account – Where the appellant submitted that money received for Workers Compensation during the marriage should have been returned to him – Absence of evidence before trial Judge about matters complained of in the appeal

FAMILY LAW – PROPERTY – Dismissed

COSTS – Appellant to pay the reserve costs of respondent from directions hearings in relation to the appeal – Costs as assessed – Appellant to pay the costs of the Independent Children’s Lawyer – Costs fixed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

AMS v AIF (1999) FLC 92-852
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
Bass & Bass (2008) FLC 93-366
Chorn & Hopkins (2004) FLC 93-204
De Winter v De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

MR PAYNE

RESPONDENT:

MRS PAYNE

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

FILE NUMBER:

SYF

4343

2003

APPEAL NUMBER:	EA	79	of	2007
EA	96	of	2008

DATE DELIVERED:

5 February 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Boland & Dessau JJ

HEARING DATE:

2 December 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 May 2007
& 27…

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 Payne & Payne

Details

AGLC: Payne & Payne [2009] FamCAFC 13
Case: [2009] FamCAFC 13
Decision Date: 5 February 2009

CaseChat Overview and Summary

The appellant, the father, brought an appeal against orders made by the Family Court concerning parenting and property. The central issue in the appeal was the parenting arrangement for the children, where the orders provided that the children live with the mother and that she have sole parental responsibility. The father was also granted supervised visitation one weekend every four weeks, contingent on compliance with a medical treatment regime. The father's history of mental ill health and family violence raised concerns about the children's safety and wellbeing during his care. The father argued that there was bias against him by the expert and the Independent Children’s Lawyer, and that the trial judge discriminated against him due to his mental health issues. He also claimed that the orders were impractical.

The court dismissed the father’s appeal regarding the parenting orders that the children live with the mother and that she have sole parental responsibility. However, it allowed the appeal in part concerning the father’s visitation times. The court varied the parenting order to allow the father additional telephone contact with the children on Father's Day, their birthdays, and Christmas Day. The court also dismissed the father’s appeal against the property orders, which divided the net assets between the parties, with 62.5 per cent to the wife and 37.5 per cent to the husband. The father's arguments regarding the consideration of his gambling hobby, a criminal compensation payment, and Workers Compensation money received during the marriage were dismissed due to the absence of evidence before the trial judge.

The court ordered that the father's appeal against the property orders was dismissed. It also dismissed the father's appeal against the parenting orders concerning the children living with the mother and her sole parental responsibility. However, the court allowed the father's appeal in part concerning the visitation times. The parenting order was varied to allow the father additional telephone contact with the children on special occasions. The court also ordered that the father pay the reserve costs of the wife from the directions hearings and the costs of the Independent Children’s Lawyer.

Orders

Orders of the court

That the husband’s appeal against the property orders made by the Honourable Justice Le Poer Trench on 29 May 2007 is dismissed.

That the husband’s appeal against Orders 1, 2 and 3 of the parenting orders made by the Honourable Justice Le Poer Trench on 23 May 2007 is dismissed.

That the appeal against the parenting orders of the Honourable Justice Le Poer Trench made 27 May 2008 is allowed in part.

That Order 8 of the parenting orders made by the Honourable Justice Le Poer Trench on 27 May 2008 be varied by the following addition:

(c) on Father’s Day if the children are not to spend time with the father pursuant to Order 1 above, between 6.30 pm and 7.00 pm;

(d) on each of the children’s birthdays if they are not to spend time with the father pursuant to Order 1 above, or by reason of the mother’s election pursuant to Order 11, between 6.30 pm and 7.00 pm;

(e) on Christmas Day when the children are not to spend time with the father pursuant to Order 1 above, or at the mother’s election in accordance with Order 11, between 6.30 pm and 7.00 pm.

The husband pay the reserve costs of the wife of and incidental to the directions hearings of 25 July 2007, 22 November 2007, 17 December 2007, 28 May 2008 and 3 October 2008 as agreed and failing agreement as assessed pursuant to Chapter 19 of the Family Law Rules, 2004.

The husband pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,200.00.

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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