Phillips & Hansford

Case [2019] FamCAFC 165

Family Court of Australia

Phillips & hansford (No. 2) [2019] FamCAFC 165

FAMILY LAW – APPEAL – Appeal against interim parenting orders – Whether the primary judge erred by making an interim order without conducting a Rice and Asplund (1979) FLC 90-725 hearing – Whether the primary judge gave consideration to the necessary s 60CC considerations – Where the primary judge did not err and did not deny the parties procedural fairness by not conducting a Rice and Asplund (1979) FLC 90-725 hearing – Where the primary judge had regard to relevant s 60CC considerations – No merit in any of the grounds of appeal – Appeal dismissed – Written submissions to be provided as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the mother sought to adduce further evidence that was likely to be controversial – Where the evidence was not admissible – Application dismissed.
Family Law Act 1975 (Cth) ss 11F, 60CC
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter and De Winter (1979) FLC 90-605
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
SPS & PLS (2008) FLC 93-363; [2008] FamCAFC 16
Appellant: Mr Phillips
Respondent: Ms Hansford
Independent children’s lawyer: Legal Services Commission
File Number: ADC 4008 of 2013
Appeal Number: SOA 21 of 2019
DATE DELIVERED: 4 October 2019
Place Delivered: Sydney
Place Heard: Adelaide
Judgment of: Strickland, Ainslie-Wallace & Aldridge JJ
Hearing date: 19 July 2019
Lower court jurisdiction: Federal Circuit Court of Australia
lower court judgment date: 28 February 2019
LOWER COURT MNC: [2019] FCCA 912

REPRESENTATION

COUNSEL FOR THE Appellant: Mr McQuade
SOLICITOR FOR THE Appellant: Jacqui Ion Lawyers
COUNSEL FOR THE RESPONDENT: Ms O'Connor SC
SOLICITOR FOR THE RESPONDENT: D'Angelo Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Hemsley
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission

Orders

  1. The respondent’s Application in an Appeal filed on 4 June 2019 be dismissed.

  2. The appeal be dismissed.

  3. Any party seeking an order for costs is to file and serve written submissions attaching any relevant offers of settlement within twenty-eight (28) days of the date of these orders with the other party to respond within a further twenty-eight (28) days. The party seeking the costs may file submissions in reply within a further seven (7) days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Phillips & Hansford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02

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Phillips & Hansford [2019] FamCAFC 165
Case
[2019] FamCAFC 165
Decision Date

CaseChat Overview and Summary

In the case of Phillips & Hansford, the mother appealed the interim parenting orders made by a primary judge in the Family Court. The mother contested the interim orders, arguing that the primary judge had erred in making them without conducting a Rice and Asplund hearing and without considering the necessary s 60CC factors. The father opposed the appeal and sought costs. The mother also sought to adduce further evidence that was likely to be controversial, but this evidence was deemed inadmissible.

The court examined whether the primary judge erred by making the interim orders without a Rice and Asplund hearing and whether the necessary s 60CC considerations were taken into account. The court found that the primary judge had not erred and had considered the relevant s 60CC factors. The mother's arguments lacked merit, and the appeal was dismissed. Additionally, the mother's application to adduce further evidence was dismissed as the evidence was not admissible.

The court dismissed the mother's appeal and ordered the respondent's application in an appeal be dismissed. The court also dismissed the mother's application to adduce further evidence. Any party seeking an order for costs was required to file and serve written submissions within 28 days of the date of the orders, with the other party responding within a further 28 days. The party seeking the costs could file submissions in reply within a further 7 days. The form of the order was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The respondent’s Application in an Appeal filed on 4 June 2019 be dismissed.

2.

The appeal be dismissed.

3.

Any party seeking an order for costs is to file and serve written submissions attaching any relevant offers of settlement within twenty-eight (28) days of the date of these orders with the other party to respond within a further twenty-eight (28) days. The party seeking the costs may file submissions in reply within a further seven (7) days.

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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