Stott & Holgar

Case [2017] FamCAFC 152


FAMILY COURT OF AUSTRALIA

STOTT & HOLGAR AND ANOR [2017] FamCAFC 152

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.

Family Law Act 1975 (Cth) ss 60CC(2)(a), 60CC(2)(b)
Federal Proceedings (Costs) Act 1981 (Cth)

A v A (1998) FLC 92-800
Amador v Amador (2009) 43 Fam LR 268
B and B (1993) FLC 92-357
Bennett and Bennett (1991) FLC 92-191

Johnson and Page (2007) FLC 93-344

M v M (1988) 166 CLR 69
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
N and S and the Separate Representative (1996) FLC 92-655
Napier and Hepburn (2006) FLC 93-303
Potter and Potter (2007) FLC 93-326

U v U (2002) 211 CLR 238

APPELLANT: Ms Stott
1ST RESPONDENT: Mr Holgar
2ND RESPONDENT: Ms B
INDEPENDENT CHILDREN’S LAWYER: Norman Waterhouse Lawyers
FILE NUMBER: ADC 2199 of 2008
APPEAL NUMBER: SOA 71 of 2016
DATE DELIVERED: 7 August 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Adelaide
JUDGMENT OF: Thackray, Kent & Watts JJ
HEARING DATE: 24 February 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 5 August 2016
LOWER COURT MNC: [2016] FamCA 632

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Lewis
SOLICITOR FOR THE APPELLANT: Georgina Parker Lawyers
THE 1ST RESPONDENT: In person
THE 2ND RESPONDENT: In person
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McQuade
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Norman Waterhouse Lawyers

Orders

  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) Act1981 (Cth) respectively, being a certificate that, in the opinion of the Court, it would…

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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.

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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