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Pinton & Burnett

Pinton & Burnett

Case [2009] FamCAFC 7 22 January 2009

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FAMILY COURT OF AUSTRALIA

PINTON & BURNETT

[2009] FamCAFC 7

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATE DECISION – PARENTING – Discretionary judgment - Whether the trial judge failed to give sufficient weight to the Family Report – Whether the trial judge failed to give adequate reasons for departing from the recommendations of the Family Report

FAMILY LAW - EXPERT EVIDENCE – Adequacy of reasons in considering expert evidence – Lack of discernable path

FAMILY LAW - COSTS – No order – Parties financial circumstance

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Crispen & Crispen [2008] FamCAFC 14
De Winter v De Winter (1979) FLC 90-605
House v The King (1936) 55 CLR 499
N v N [2004] FamCA 706 (Unreported)
Newlands v Newlands (2007) 37 FamLR 103

APPELLANT:

MR PINTON

RESPONDENT:

MS BURNETT

FILE NUMBER:

BRM

302

2006

APPEAL NUMBER:

2007

DATE DELIVERED:

22 January 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

25 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 October 2007

LOWER COURT MNC:

[2007] FMCAfam 1011

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R. Hamwood

SOLICITOR FOR THE APPELLANT:

Simonidis Shoebridge Lawyers

COUNSEL FOR THE RESPONDENT:

Mr S. McConnel

SOLICITOR FOR THE RESPONDENT:

Fairlie Legal Services

Orders

The appeal is dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Pinton & Burnett 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 BRISBANE

Appeal Number: NA 78 of 2007
File Number: BRM 302 of 2006

MR PINTON

Appellant

And

MS BURNETT

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal from parenting orders made by Federal Magistrate Slack on 19 October 2007.
The appeal was heard by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).
This appeal centres on the parenting arrangements of the only child of the parties, T Pinton born July 2004, now aged 4, to be 5 in July.
The orders from which the appellant father appeals are contained in paragraph 9, providing a regime for the time the child has with the father:
Time with the other parent
(9)That the child is to spend time with (and/or live) and/or communicate with the Father as agreed between the parents and if they fail to agree then as follows:
(a)      Until the end of July 2008:
(i)each Tuesday from 5:30pm until 7:30pm;
(ii)on Friday from 5:30pm until 2:00pm Saturday in Week 1; and
(iii)on Saturday from 9.00am until 5.00pm Sunday in Week 2;
(a)        From July 2008 until the end of December 2008:
(i)       each Tuesday from 5:30pm until 7:30pm
(ii)on Friday from 5:30pm until 2:00pm Saturday in Week 1; and
(iii)on Friday from 5:30pm until…

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 Pinton & Burnett

Details

AGLC: Pinton & Burnett [2009] FamCAFC 7
Case: [2009] FamCAFC 7
Decision Date: 22 January 2009

CaseChat Overview and Summary

In the matter of Pinton & Burnett, the parties were involved in a dispute regarding parenting arrangements. The appeal arose from a decision made by a Federal Magistrate, which was subsequently brought before a higher court. The central issue in the appeal was whether the trial judge had appropriately exercised their discretion in making the parenting orders. The parents contested the weight given by the trial judge to a Family Report, as well as the adequacy of the reasons provided for deviating from the report’s recommendations.

The court was tasked with determining whether the trial judge had failed to sufficiently consider the Family Report and whether the reasons given for departing from the report’s recommendations were adequate. The parents argued that the trial judge had not sufficiently explained their departure from the report's findings, particularly in relation to expert evidence that was presented. The court examined the trial judge’s reasoning and whether it demonstrated a "discernible path" to the conclusions reached.

The court found that the trial judge had appropriately exercised their discretion and provided sufficient reasons for their decisions. The reasoning of the trial judge was considered thorough and reflected a careful consideration of the Family Report and expert evidence. The court held that the trial judge's decision was within the bounds of acceptable discretion, and accordingly, the appeal was dismissed. As for costs, given the financial circumstances of both parties, the court determined that no order for costs should be made.

Orders

Orders of the court

The appeal is dismissed.

No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Pinton & Burnett [2009] FamCAFC 7

Most Recent Citation

Sloan & Reed [2009] FamCAFC 19

Cases Citing This Decision

Sloan & Reed [2009] FamCAFC 19
Citation 1 (Para 1)

…In the matter of Pinton & Burnett [2009] FamCAFC 7 this question was also considered. It is useful to repeat part of the judgment: 47.A central question in this matter is whether the trial Judge should have departed from the expert evidence of the family consultant. 48.Although neither counsel referred to any case…

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Cases Cited

Crispen & Crispen [2008] FamCAFC 14
Citation 1 (Para 2)

…The matters to be considered in relation to adequacy of reasons are well settled and summarised in Crispen & Crispen [2008] FamCAFC 14: 11.Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274: … A fact is found in a particular case if the judge is satisfied that it is so. … The determ…
VAK & AK [2005] FamCA 803
Citation 2 (Para 2)

…The law in respect of appeals from a discretionary judgment is well established. A summary of the cases is contained in Krassas & Krassas [2005] FamCA 803 at 43-49: 43. In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint…
Whisprun Pty Ltd v Dixon [2003] HCA 48
Citation 3 (Para 2)

…ere are often judgmental steps which can only be stated without elaboration… In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [62] Gleeson CJ, McHugh and Gummow JJ said: …A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevan…
Athens v Randwick City Council [2002] NSWCA 83
Citation 4 (Para 2)

…e reasons are certainly succinct; but that is often to be regarded as a judicial virtue… Giles JA said in Athens & Anor v Randwick City Council [2002] NSWCA 83: The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all co…
CDJ v VAJ [1998] HCA 67
Citation 5 (Para 2)

…Further the mother submits that the parenting orders were within the discretion of the Federal Magistrate and cited CDJ v VAJ (1998) 197 CLR 172 where McHugh, Gummow and Callinan JJ said in relation to such orders, at page 218-219: …The views of appellate judges about the proper order to be made will not infrequently…
Norbis v Norbis [1986] HCA 17
Citation 6 (Para 2)

…thin which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere, per Brennan J in Norbis v Norbis (1986) FLC 91-712 at 75,178. 49.As some of the grounds of appeal attack the adequacy of his Honour’s reasons, it is appropriate that we refer to the following p…
Gronow v Gronow [1979] HCA 63
Citation 7 (Para 2)

…in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 45. In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519: The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge wa…
Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25
Citation 8 (Para 2)

…ry of the cases is contained in Krassas & Krassas [2005] FamCA 803 at 43-49: 43. In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:…
House v R [1936] HCA 40
Citation 9 (Para 1)

…Counsel for the father submitted there is a ground for reviewing the decision, as in House v The King (1936) 55 CLR 499, because the trial judge: a)Did not give sufficient weight to the Family Report, dated 21 May 2007; and b)Did not give adequate reasons for departing from the recommendations of the Family Report a…
Public Service Board of NSW v Osmond [1986] HCA 7
Citation 10 (Para 2)

…ersons to ascertain the basis upon which like cases will probably be decided in the future. In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley . In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wal…
FamCA 706 and L v L [2002] FAMCA 537
Citation 11 (Para 8)

…nd important recommendations made by, a family consultant require careful examination by the trial judge: (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537). [99] In this case the trial judge made orders in different terms to those recommended by the family consultant in circumstances where an existing arr…
N v N [2004] FAMCA 706
Citation 12 (Para 8)

…evidence, the evidence of, and important recommendations made by, a family consultant require careful examination by the trial judge: (see N and N [2004] FamCA 706 and L and L [2002] FamCA 537). [99] In this case the trial judge made orders in different terms to those recommended by the family consultant in circum…
[2007] FMCAFAM 1011 [2007] FMCAFAM 1011
Citation 13

…[2007] FMCAfam 1011…
House v The King 63 WN 176
Citation 14 (Para 1)

…Counsel for the father submitted there is a ground for reviewing the decision, as in House v The King (1936) 55 CLR 499, because the trial judge: a)Did not give sufficient weight to the Family Report, dated 21 May 2007; and b)Did not give adequate reasons for departing from the recommendations of the Family Report and the…
Palmer v Clarke 45 ER 206
Citation 15 (Para 2)

…nd (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley . In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellabl…
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Citation 16 (Para 2)

…mencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention (from Para 2)
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention