Stone and Stone & Anor - [2016] FamCAFC 141

FAMILY COURT OF AUSTRALIA

STONE & STONE AND ANOR

[2016] FamCAFC 141

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the maternal grandmother – Where the maternal grandmother asserted the orders made were not in the best interests of the children – Where the trial judge’s findings were open on the evidence – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the maternal grandmother appealed a property order as between the father and the mother – Where the maternal grandmother was not a party to the property proceedings and the order appealed does not bind her – Where the maternal grandmother lacks standing to appeal this order – Appeal dismissed.

FAMILY LAW – CROSS APPEAL – CHILDREN – Where the trial judge made orders that the children neither see nor have direct communication with the mother – Where the experts’ recommendations that the children spend time with the mother must be viewed in the context of the totality of the evidence – Where the mother alleged the trial judge failed to consider allegations of family violence and abuse – Where the trial judge made adverse credit findings against the mother – Cross appeal dismissed.

FAMILY LAW – CROSS APPEAL – PRACTICE AND PROCEDURE – Where the trial judge refused an adjournment of the trial based on the evidence before him – Cross appeal dismissed.

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

Ms S Stone

RESPONDENT:	Mr Stone
CROSS APPELLANT:	Ms Stone

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen

FILE NUMBER:

BRC

1645

2011

APPEAL NUMBER:

2015

DATE DELIVERED:

4 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray & Ainslie Wallace JJ

HEARING DATE:

8 June 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 January 2015

LOWER COURT MNC:

[2015] FamCA 14

REPRESENTATION

APPELLANT:

In person

RESPONDENT:

In person

COUNSEL FOR THE CROSS APPELLANT:

Mr Edwards (direct brief)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Carmody

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family Law

Orders

The appeal against the orders of Forrest J made on 22 January 2015 is dismissed.
The cross appeal against the orders of Forrest J made on 22 January 2015 is 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 Stone & Stone and Anor has been approved by the Chief Justice pursuant to s 21(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

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 Stone and Stone & Anor

Details

AGLC: Stone and Stone & Anor [2016] FamCAFC 141
Case: [2016] FamCAFC 141
Decision Date: 4 August 2016

CaseChat Overview and Summary

Stone and Stone & Anor involved appeals and cross-appeals regarding parenting and property orders made by Forrest J. The primary dispute was about the contact between the children and their maternal grandmother, as well as the allocation of property between the parents. The Court of Appeal had to consider whether the orders regarding contact with the grandmother and the property distribution were in the children's best interests and whether the grandmother had standing to appeal the property order.

The legal issues included whether the trial judge's orders concerning the children's contact with their maternal grandmother were appropriate, given the grandmother's argument that they were not in the children's best interests. The Court of Appeal also had to determine if the grandmother had the standing to challenge the property order, as she was not a party to those proceedings. Furthermore, the mother's cross-appeal questioned whether the trial judge adequately considered allegations of family violence and whether he should have granted an adjournment.

The Court of Appeal found that the trial judge's findings regarding the children's contact with their maternal grandmother were supported by the evidence and thus upheld the orders. The Court also ruled that the grandmother lacked standing to appeal the property order, as she was not a party to the property proceedings. Regarding the cross-appeal, the Court found that the trial judge's findings on family violence were adequately supported by evidence and dismissed the mother's argument that an adjournment should have been granted. The cross-appeal was dismissed on all grounds.

The Court of Appeal dismissed both the appeal and the cross-appeal against the orders made by Forrest J on 22 January 2015, thereby affirming the original orders regarding contact with the maternal grandmother and the property distribution. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal against the orders of Forrest J made on 22 January 2015 is dismissed.

The cross appeal against the orders of Forrest J made on 22 January 2015 is 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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