STEEL & GALLOWAY

[2012] FamCAFC 25

FAMILY COURT OF AUSTRALIA

STEEL & GALLOWAY [2012] FamCAFC 25

FAMILY LAW – APPEAL – CHILDREN – Appeal from a decision of a Family Court judge that the child live with the father and spend only supervised time with the mother, with provision for the mother to have unsupervised time after a year – In circumstances where the child was living with the mother at the time the orders were made – Whether the trial Judge relied uncritically on the report of the Single Expert and/or gave it inappropriate weight – The trial Judge dealt appropriately with the evidence of the Single Expert – Whether the trial Judge failed to apply the provisions of s 140(2) of the Evidence Act 1995 (Cth) and the “Briginshaw principles” – The trial Judge applied the correct standard of proof when making the findings he did – Whether the trial Judge erred by failing to make a “Jones v Dunkel” inference arising from the father’s failure to call a witness – There was no basis upon which a “Jones v Dunkel” inference could have been drawn against the father. 

FAMILY LAW – APPEAL – CHILDREN – Whether the trial Judge erred in his findings concerning the costs of supervision – Appellable error established in finding that there would not be any significant expense associated with the mother spending time with the child and in failing to give reasons why the mother should meet all of the costs – Appeal allowed in part – The proceedings be remitted for rehearing concerning the responsibility for the costs associated with the supervision arrangements – Rehearing if practicable to be conducted by the same Judge who made the orders appealed – No order as to costs in relation to the appeal – Costs certificate granted only to the respondent for the appeal, but to both parties for the rehearing.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Coulton v Holcombe (1986) 162 CLR 1
Finlayson v Finlayson & Gillam (2002) FLC 93-121
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Qantas Airways Ltd v Gama (2008) 167 FCR 537
R v TA [2003] NSWCCA 191
Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] 68 ALJR 304

APPELLANT: Ms Steel  

RESPONDENT: Mr Galloway

FILE NUMBER: SYC 6615 of 2007

APPEAL NUMBER: EA 90 of 2011

DATE DELIVERED: 22 February 2012

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Thackray, Ainslie-Wallace and Murphy JJ

HEARING DATE: 30 January 2012

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 July 2011

LOWER COURT MNC: [2011] FamCA 550

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr de Robillard

SOLICITOR FOR THE APPELLANT: Self-represented

COUNSEL FOR THE RESPONDENT: Mr Wheelhouse SC

SOLICITOR FOR THE RESPONDENT: Slade Manwaring Solicitors

Orders

1. The…