Sander & Lynwood - [2024] FedCFamC1A 108

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sander & Lynwood [2024] FedCFamC1A 108

Appeal from: Sander & Lynwood [2024] FedCFamC1F 126

Appeal number:

NAA 72 of 2024

File number:

BRC 7049 of 2022

Judgment of:

ALDRIDGE, JARRETT & CAMPTON JJ

Date of judgment:

9 July 2024

Catchwords:

FAMILY LAW – APPEAL – Appeal from final parenting orders – Appellant alleges the primary judge failed to take into account relevant considerations – Appellant alleges orders for time to be contingent on the appellant engaging in therapy are uncertain – Whether the primary judge failed to consider an alternative order to promote meaningful relationships – No error established – Appeal dismissed – Costs ordered in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 62G

Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Number of paragraphs:

53

Date of hearing:

26 June 2024

Place:

Heard in Brisbane, delivered in Sydney

Counsel for the Appellant:

Ms Chekirova

Solicitor for the Appellant:

Transitional Legal Pty Ltd

Counsel for the Respondent:

Ms Pendergast

Solicitor for the Respondent:

Northside Family Law Centre

Counsel for the Independent Children’s Lawyer:

Mr McGregor

Solicitor for the Independent Children’s Lawyer:

Bridges Family Law Specialists

ORDERS

NAA 72 of 2024
BRC 7049 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS SANDER

Appellant

AND:
MR LYNWOOD

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, JARRETT & CAMPTON JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $24,500.
3.The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,573.09.

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)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sander & Lynwood has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, JARRETT & CAMPTON JJ:

By her Amended Notice of Appeal filed on 24 May 2024 the appellant, who is the mother of X (aged 9) and Y (aged 7), appeals certain final parenting orders made in respect…

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 Sander & Lynwood

Details

AGLC: Sander & Lynwood [2024] FedCFamC1A 108
Case: [2024] FedCFamC1A 108
Decision Date: 9 July 2024

CaseChat Overview and Summary

The appeal arose from final parenting orders made by a primary judge, with the appellant, Ms Sander, challenging the decision. Ms Sander contended that the primary judge failed to consider relevant factors, including that the orders for time with the children were contingent on her engaging in therapy. She further argued that these orders were uncertain and that an alternative order should have been considered to promote meaningful relationships with the children. The respondent, Mr Lynwood, defended the primary judge's decision, asserting that it was appropriate and that the appellant's claims of error were unfounded.

The court addressed whether the primary judge erred in failing to consider relevant factors or in making orders that were uncertain. The court examined the evidence and submissions to determine if the primary judge had overlooked any significant considerations. The court found that the primary judge had adequately considered the relevant factors and that the orders were not uncertain. The court also noted that while the appellant proposed an alternative order, it was not demonstrated that the primary judge had failed to consider it. The court held that no error was established in the primary judge's decision.

The court dismissed the appeal, concluding that the primary judge's decision was correct. The court ordered the appellant to pay the respondent's costs of the appeal in the sum of $24,500 and the Independent Children's Lawyer's costs of the appeal in the sum of $4,573.09. The form of the order is subject to entry in the court’s records, and any minor typographical or grammatical errors may be reviewed or varied as per the relevant rules.

Orders

Orders of the court

NAA 72 of 2024

BRC 7049 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SANDER

Appellant

AND:

MR LYNWOOD

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, JARRETT & CAMPTON JJ

DATE OF ORDER:

9 JULY 2024

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $24,500.

3. The appellant pay the Independent Children’s Lawyer’s costs of and incidental to the appeal fixed in the sum of $4,573.09.

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)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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.

NAA 72 of 2024 BRC 7049 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS SANDER Appellant
AND:	MR LYNWOOD Respondent
INDEPENDENT CHILDREN’S LAWYER

Appeal from:	Sander & Lynwood [2024] FedCFamC1F 126
Appeal number:	NAA 72 of 2024
File number:	BRC 7049 of 2022
Judgment of:	ALDRIDGE, JARRETT & CAMPTON JJ
Date of judgment:	9 July 2024
Catchwords:	FAMILY LAW – APPEAL – Appeal from final parenting orders – Appellant alleges the primary judge failed to take into account relevant considerations – Appellant alleges orders for time to be contingent on the appellant engaging in therapy are uncertain – Whether the primary judge failed to consider an alternative order to promote meaningful relationships – No error established – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 62G
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs:	53
Date of hearing:	26 June 2024
Place:	Heard in Brisbane, delivered in Sydney
Counsel for the Appellant:	Ms Chekirova
Solicitor for the Appellant:	Transitional Legal Pty Ltd
Counsel for the Respondent:	Ms Pendergast
Solicitor for the Respondent:	Northside Family Law Centre
Counsel for the Independent Children’s Lawyer:	Mr McGregor
Solicitor for the Independent Children’s Lawyer:	Bridges Family Law Specialists

ORDER MADE BY:	ALDRIDGE, JARRETT & CAMPTON JJ
DATE OF ORDER:	9 JULY 2024