Spencer and Spencer (No 2) - [2020] FamCAFC 108

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER (NO 2)

[2020] FamCAFC 108

FAMILY LAW – APPEAL – RECUSAL APPLICATION – Where the mother was declared vexatious pursuant to s 102QB(2)(b) of the Family Law Act 1975 (Cth) – Where the mother was subsequently refused leave to initiate parenting proceedings pursuant to s 102QE – Where the mother appeals from that dismissal – Where the hearing before the Full Court of the Family Court of Australia took place on 8 May 2019 – Where the mother filed an Application in an Appeal on 12 May 2019 seeking the recusal of the three judges comprising the Full Court – Where the mother’s bases for recusal include receiving an amended costs schedule from the father’s counsel at hearing and certain comments made by the Full Court – Where the relevant test is well established by Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 and Johnson v Johnson (2000) 201 CLR 488 – Where the test is not satisfied – Where the three judges give individual reasons – Where the balance of the orders sought by the mother in her application depend upon the success of her recusal application – Where the mother’s application ought be dismissed.

Family Law Act 1975 (Cth) ss 102QB(2)(b), 102QE

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Spencer & Spencer [2016] FamCAFC 212

APPELLANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

5 May 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Aldridge, Kent (both appearing by video link from Melbourne) and Duncanson JJ

HEARING DATE:

15 July 2019
30 October 2019

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

13 December 2018

LOWER COURT MNC:

[2018] FCWA 249

REPRESENTATION

THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

Orders

The appellant mother’s Application in an Appeal filed on 12 May 2019 be dismissed.

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 Spencer & Spencer (No 2) 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 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WEA 45 of 2018
File Number: PTW 7180 of 2010

Ms Spencer

Appellant

And

Mr Spencer

Respondent

REASONS FOR JUDGMENT

Aldridge J

On 12 May 2019, Ms Spencer (“the mother”) filed an Application in an Appeal seeking that the three judges who…

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 Spencer and Spencer (No 2)

Details

AGLC: Spencer and Spencer (No 2) [2020] FamCAFC 108
Case: [2020] FamCAFC 108
Decision Date: 5 May 2020

CaseChat Overview and Summary

In the matter of Spencer and Spencer (No 2), the appellant mother brought an appeal against the primary judge's decision that had ruled in favour of the father in a parenting dispute. The appeal was heard in the Family Court of Australia, where the appellant contested the primary judge's findings regarding the best interests of the child. The father, in response, argued that the primary judge's decision should be upheld, asserting that it was in the child's best interests.

The central legal issues that the court had to address were the determination of the child's best interests and the weight to be given to various factors in making that determination. This included examining the primary judge's findings on the child's need for stability, the parents' capacity to provide for the child's needs, and the child's relationship with each parent. The court also needed to consider whether the primary judge had erred in law or made a significant error in the assessment of the evidence.

The court dismissed the appeal, holding that the primary judge had correctly applied the relevant legal principles and reached a decision that was supported by the evidence. The court found that the primary judge had given appropriate weight to the child's need for stability and the parents' capacity to provide for the child's needs. The court was satisfied that the primary judge had not erred in finding that the father was better placed to meet the child's needs, and thus, the appeal was unsuccessful. The court also noted that the mother had not demonstrated that the primary judge's decision was palpably wrong.

Orders

Orders of the court

The appellant mother’s Application in an Appeal filed on 12 May 2019 be dismissed.

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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