SCRANTON & SCRANTON - [2012] FamCAFC 54

FAMILY COURT OF AUSTRALIA

SCRANTON & SCRANTON

[2012] FamCAFC 54

FAMILY LAW – APPEAL – CHILDREN – whether the Federal Magistrate erred in findings of fact, in procedure and evidence, in law and in form – no error found – appeal dismissed.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Scranton

RESPONDENT:

Mrs Scranton

INDEPENDENT CHILDREN’S LAWYER:

Ms Grew

FILE NUMBER:

PAC

3475

2009

APPEAL NUMBER:

154

2010

DATE DELIVERED:

5 April 2012

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Ainslie-Wallace & Loughnan JJ

HEARING DATE:

20 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 October 2010

LOWER COURT MNC:

[2010] FMCAfam 1160

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Kenny

SOLICITOR FOR THE RESPONDENT:

Shepherds Family Law Specialists

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Druitt

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Matthews Folbigg Pty Ltd

Orders

The appeal be dismissed.
The father pay the costs of the mother of and incidental to the appeal, with the costs to be assessed in default of agreement.
The application by the Independent Children’s Lawyer for costs be refused.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 154 of 2010
File Number: PAC 3475 of 2009

Mr Scranton

Appellant

And

Mrs Scranton

Respondent

REASONS FOR JUDGMENT

The appellant, Mr Scranton (“the father”) appeals against the parenting orders made by Henderson FM on 26 October 2010 in relation to the two children of the marriage between him and the respondent, Mrs Scranton (“the mother”), namely, X (born in 2000) and Y (born in 2003) (“the children”).
The Federal Magistrate made 17 orders, including orders which provided for the mother to have sole parental responsibility for the children; for them to live with her; and after an introductory period for them to spend alternate weekends and half school holidays with the father. Other matters which were (or were not) the subject of her Honour’s orders will be referred to later in these reasons.
At the commencement of the hearing of the appeal, we permitted the father to rely on a 160 page bound document titled “Full-Length Argument of Appellant” (“the Written Argument”). We also permitted the father to amend the grounds of appeal contained in his Second Amended Notice of Appeal filed 25 August 2011 to include the corrections to Grounds 5 and 14 contained in Part 1 (page 3) of the Written Argument.
Although the Written Argument had not been served on the other parties to…

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: [2012] FamCAFC 54
Decision Date: 5 April 2012

CaseChat Overview and Summary

The appeal in the matter of Scranton & Scranton involved the father challenging the Family Court's decision regarding parenting arrangements for his two children. The father sought to overturn the primary judge's findings and orders, arguing that the judge had made numerous factual errors that were prejudicial to his case. The appeal was heard by the Full Court, which had to determine whether the alleged factual errors were material to the decision and whether they warranted appellate interference.

The court examined the father's arguments about the alleged errors in the primary judge's findings and considered whether these errors went to the central issues in the matter. The court noted that while there were clear errors demonstrated, they did not individually or collectively operate to impugn the primary judge's reasoning process. The court concluded that the father's assertion that the errors were "almost uniformly prejudicial against the father" was one of impression and did not lead to the asserted conclusion that justice had not been done. The court held that errors of fact do not inevitably lead to appellate interference and that an appeal court will only interfere if the mistake is material to the decision.

After considering the father's arguments and the alleged errors, the court found that the father had not demonstrated that the errors were of such a nature that they gave rise to appealable error. The court held that the appeal should be dismissed and that the father should pay the mother's costs of and incidental to the appeal, with the costs to be assessed in default of agreement. The court also refused the application by the Independent Children's Lawyer for costs.

Orders

Orders of the court

The appeal be dismissed.

The father pay the costs of the mother of and incidental to the appeal, with the costs to be assessed in default of agreement.

The application by the Independent Children’s Lawyer for costs be refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The father argued in Part 2 of his Written Argument (page 6):(w)In each of the above cases, her Honour’s statement reflects more negatively on the father than is justified by the facts.(x)Certainly one or two minor errors of fact might not be seen to affect the outcome of a case materially. Even in a decision with a large number of factual errors, if they were more or less evenly divided, with some being more favourable to the father and some being more favourable to the mother, it might be reasonable to conclude that they had no effect on the outcome. However, as demonstrated above, the errors listed in Part 3: Errors of Fact Regarding Uncontested Evidence are almost uniformly prejudicial against the father (original emphasis).(y)The large number of errors in this decision and their consistently negative slant against the father creates the impression that justice has not been done.(z)Rather than following the evidence to a natural conclusion, her Honour has allowed the conclusion to dictate the characterisation of the evidence. While we understand the father’s assertion that the factual errors lead him to feel less confident in the reasoning process, it is important to observe that while there were clear errors demonstrated, they do not go to the central issues in the matter nor do they individually nor collectively operate to impugn her Honour’s reasoning process. Errors of fact do not inevitably lead to appellate interference. In De Winter and De Winter (1979) FLC 90-605 the High Court held that if a trial judge has made a mistake of fact, an appeal court will only interfere if the mistake is material to the decision. We are not satisfied that the errors to which the father pointed in his oral argument and in his Written Argument were of such a nature that they give rise to appealable error. The submission that the errors were “almost uniformly prejudicial against the father” is one of impression. Taken in context of the whole of the reasons, we do not find that these errors lead to the asserted conclusion. These grounds were considered at paragraph 3 of Part 2 of the father’s Written Argument and following (pages 7 to 40). Again, we do not propose to set out the asserted errors in full, but will, again, refer to some of them to illustrate our conclusions about these grounds. In his oral argument, the father took us to Ground 7 of the Second Amended Notice of Appeal, which related to her Honour’s findings about negotiations between the parents, and we were directed to [146]-[148] and [157]-[159] of her reasons. This argument was also contained in Part 2 of the Written Argument (at page 14). Her Honour found:146.There was an emphasis in the father’s evidence of the mother going back on “agreements” they had reached about schooling for the boys, passports, who would keep passports, time with the boys and the like. That “going back on agreements” as he saw it stressed the father. I formed the view that the father has no idea what the word “agreement” means.147.What the father regards as agreement is a comprehensive detailed document prepared by him setting out chapter and verse what he believes should occur and that such a document when presented is the agreement. It is not. This is merely the father imposing by documentary evidence of a voluminous nature his will upon others and in particular the mother.148.Acceptance by each party is at the core of an “agreement” not acquiescence under pressure or weight of material as happened to the mother again and again and as Mr [Scranton] tried to do with the Court in his eleven well written and comprehensive affidavits filed in these proceedings, the last of which was 2016 paragraphs in length.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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