Spencer & Spencer - [2016] FamCAFC 212

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER

[2016] FamCAFC 212

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Appeal against an order for the mother’s contact with the child to be limited to the exchange of letters, photos, presents and videos – The mother’s complaints lack merit – Appeal dismissed.

FAMILY LAW – APPEAL – VEXATIOUS LITIGANT – Appeal against an order restraining the mother from commencing further child-related proceedings – The mother concedes that her applications were all unsuccessful – The trial judge was not only justified but perhaps compelled to impose some limit on the proceedings – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Appeal against an order for the appellant to pay fixed costs to the respondent and Independent Children’s Lawyer – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Various applications to adduce further evidence dismissed, except to the extent that some documents were adduced by consent.

FAMILY LAW – APPEAL – COSTS – Order for the appellant to pay the costs of the appeal sought by the respondent and Independent Children’s Lawyer, with enforcement stayed until the resolution of the property proceedings.

Family Law Act 1975 (Cth) – s 69ZN(4), 69ZQ(1), s 69ZX, s 97(3) , s 117(2A), s 117AB

APPELLANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:	WA	4	of	2014
	WA	13	of	2014
	WA	22	of	2014
	WA	27	of	2014
	WA	31	of	2014
	WA	32	of	2014

DATE DELIVERED:

3 November 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Thackray & Murphy JJ

HEARING DATE:

28 & 29 October 2015
12 April 2016

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:	WA 4: 21 January 2014
	WA 13: 8 April 2014
	WA 22: 18 August 2014
	WA 27: 28 October 2014
	WA 31: 1 December 2014
	WA 32: 21 November 2014

LOWER COURT MNC:	WA 4: [2014] FCWA 2
	WA 13: N/A
	WA 22: N/A
	WA 27: [2014] FCWA 71
	WA 31: N/A
	WA 32: [2014] FCWA 71

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Giles: 28 & 29 October 2015

Ms Turley: 12 April 2016

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Cohen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Legal Aid WA

Orders

By consent, the following documents be received as further evidence:
(a)the emails between the respondent and Dr B; and
(b) the documents produced by the Town E Medical Centre.
The appellant’s Applications in an Appeal otherwise be dismissed.
The appeals (WA 4, 13, 22, 27, 31 and 32 of 2014) be dismissed.
The appellant pay the costs of the respondent of and incidental to the appeals and the Applications in an Appeal:
(a) fixed in the sum of $54,976 for the period ending 29 October 2015; and
(b) in an amount to be assessed if not agreed for the…

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

AGLC: Spencer & Spencer [2016] FamCAFC 212
Case: [2016] FamCAFC 212
Decision Date: 3 November 2016

CaseChat Overview and Summary

The matter of Spencer & Spencer involved an appeal by the father against several orders made by the Family Court regarding contact with their child and the conduct of the mother in relation to child-related proceedings. The primary judge had ordered that the mother’s contact with the child be limited to the exchange of letters, photos, presents, and videos, and had also restrained the mother from commencing further child-related proceedings. The father contested these orders, as well as an order for him to pay fixed costs to the mother and the Independent Children’s Lawyer.

The key legal issues before the court were whether the primary judge was correct in limiting the mother's contact with the child to non-face-to-face forms, in restraining the mother from initiating further child-related litigation, and in ordering the father to pay costs. The father argued that the mother’s complaints lacked merit and that the orders were unjust. The mother conceded that her previous applications had been unsuccessful and did not seek to challenge the primary judge’s orders.

The court held that the primary judge was justified in limiting the mother's contact to non-face-to-face forms due to her vexatious conduct and the best interests of the child. The court found that the primary judge was not only justified but perhaps compelled to impose limits on the mother’s proceedings to prevent further unnecessary litigation. The court also upheld the costs orders, noting that the father's appeal lacked merit. Additionally, the court dismissed most of the applications to adduce further evidence in the appeal, except for some documents that were adduced by consent.

The appeals were dismissed, and the father was ordered to pay the mother and the Independent Children’s Lawyer fixed costs for the period up to 29 October 2015, with additional costs to be assessed if not agreed upon for the period thereafter. Enforcement of these cost orders was stayed pending the resolution of the property settlement proceedings between the parties.

Orders

Orders of the court

By consent, the following documents be received as further evidence:

(a) the emails between the respondent and Dr B; and

(b) the documents produced by the Town E Medical Centre.

The appellant’s Applications in an Appeal otherwise be dismissed.

The appeals (WA 4, 13, 22, 27, 31 and 32 of 2014) be dismissed.

The appellant pay the costs of the respondent of and incidental to the appeals and the Applications in an Appeal:

(a) fixed in the sum of $54,976 for the period ending 29 October 2015; and

(b) in an amount to be assessed if not agreed for the period after that date.

The appellant pay the costs of the Independent Children’s Lawyer of and incidental to the appeals and the Applications in an Appeal:

(a) fixed in the sum of $14,000 for the period ending 29 October 2015; and

(b) in an amount to be assessed if not agreed for the period after that date.

Enforcement of Orders 4 and 5 be stayed pending delivery of final judgment in the property settlement proceedings between the appellant and the respondent or pending discontinuance of those proceedings, whichever is the earlier.

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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