FAMILY LAW – APPEAL – CHILDREN – The child lives with the maternal grandmother – The grandmother appeals orders for the child to spend time with the father – The primary judge misapprehended the evidence of the Family Consultant and failed to afford procedural fairness to the grandmother in relation to one of the orders – The primary judge found the father did not pose an unacceptable risk to the child – Where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case – Primary judge misapplied the unacceptable risk test and did not provide adequate reasons considering the nature, magnitude and potential effect of the risks for the child – Appeal allowed – The issue of the father’s time with the child remitted for rehearing – No order as to costs – Costs certificates issued.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the father to adduce further evidence in opposition to the appeal – No utility in the proposed further evidence – Application dismissed.
Paragraph 4 of the orders made by the Honourable Justice Berman on 5 August 2016 be set aside.
The issue relating to the first respondent’s time with the child be remitted to the Family Court of Australia for rehearing by a Judge other than the Honourable Justice Berman.
The Court grants to the appellant and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 and s 9 of the Federal Proceedings (Costs) Act1981 (Cth) respectively, being a certificate that, in the opinion of the Court, it would…
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
Stott & Holgar [2017] FamCAFC 152
Case
[2017] FamCAFC 152
Decision Date
CaseChat Overview and Summary
In the matter of Stott & Holgar, the grandmother appealed against orders made by the Family Court of Australia, which mandated that her grandchild spend time with the child's father. The central legal issues concerned the primary judge's interpretation of the evidence provided by the Family Consultant and whether procedural fairness was observed in the decision-making process. Additionally, the court had to determine whether the primary judge correctly assessed the risk posed by the father to the child and if the risk assessment was sufficiently detailed and justified.
The court found that the primary judge had misapprehended the evidence of the Family Consultant and failed to ensure procedural fairness, particularly regarding one of the orders. It was also determined that the primary judge did not give real and substantial consideration to the facts of the case when assessing the alleged unacceptable risk posed by the father. The court highlighted that where an unacceptable risk is alleged, the court must meticulously consider the nature, magnitude, and potential effect of the risks for the child. The primary judge was found to have misapplied the unacceptable risk test and did not provide adequate reasons for the decision. Consequently, the appeal was allowed, and the issue of the father's time with the child was remitted for rehearing by a different judge.
The Court ordered that the appeal be allowed and the specific order pertaining to the father's time with the child be set aside. The issue of the father's time with the child was to be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Berman. Additionally, the Court granted the grandmother and the Independent Children’s Lawyer a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth), deeming it appropriate for the Attorney-General to authorize payment of costs incurred in relation to the appeal and the rehearing. The Court also dismissed the father's application to adduce further evidence in opposition to the appeal, finding no utility in the proposed evidence.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Paragraph 4 of the orders made by the Honourable Justice Berman on 5 August 2016 be set aside.
3.
The issue relating to the first respondent’s time with the child be remitted to the Family Court of Australia for rehearing by a Judge other than the Honourable Justice Berman.
4.
The Court grants to the appellant and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 and s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) respectively, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
5.
The Court grants to each of the appellant and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to each of them in respect of the costs incurred by them in relation to the rehearing of the issue remitted.
IT IS FURTHER ORDERED:
1.
The Application in an Appeal filed 7 February 2017 be dismissed.