Strahan and Strahan - [2010] FamCAFC 83

FAMILY COURT OF AUSTRALIA

STRAHAN & STRAHAN

[2010] FamCAFC 83

FAMILY LAW – APPEAL - CHILDREN – WIFE’S APPLICATION AGAINST INTERIM PARENTING ORDERS – Not established that trial judge erroneously failed to have regard to concerns expressed by the wife about the impact and risk of adverse reaction of the child to the father spending time with the child at school – Not established that the trial Judge gave undue weight to the Family Assessment Report – Not established that the trial judge failed to give adequate reasons as to why he accepted and relied upon the Family Assessment Report – Not established that the trial judge failed to give adequate reasons for not adopting recommendations of therapist and specialist in treatment of Autism – Not established the trial judge erred in his findings that proposed limitations upon the father’s time with child were appropriate – Not established that the trial judge erred in making orders for the child to spend time with the father on an interlocutory basis – No ground of appeal is successful – Appeal dismissed

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588

APPELLANT:

Mrs Strahan

RESPONDENT:

Mr Strahan

INDEPENDENT CHILDREN’S LAWYER:

Ann Bills & Associates

FILE NUMBER:

ADF

228

2005

APPEAL NUMBER:

2009

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman, May & Austin JJ

HEARING DATE:

2 March 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2009

LOWER COURT MNC:

[2009] FamCA 1082

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Pyke QC and Mr Holland

SOLICITOR FOR THE APPELLANT:

Pederick Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Berman

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia
Ann Bills & Associates

Orders

1.That the appeal be dismissed.
2.That the wife pay the husband’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.
3.The wife pay the Independent Children’s Lawyer’s costs and counsels fees in accordance with the Supreme Court of South Australia scale and Guide for counsel Fees.

IT IS NOTED that publication of this judgment under the pseudonym Strahan & Strahan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 92 of 2005
File Number: ADF 228 of 2005

Mrs Strahan

Appellant

And

Mr Strahan

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed 29 January 2010 Mrs Strahan (“the wife”) appeals against interim orders made by Strickland J on 5 November 2009 in parenting proceedings between the wife and Mr Strahan (“the husband”).
The trial judge’s orders provided that the child of the parties’ marriage, S Strahan…

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 Strahan and Strahan

Details

AGLC: Strahan and Strahan [2010] FamCAFC 83
Case: [2010] FamCAFC 83
Decision Date: 23 April 2010

CaseChat Overview and Summary

Strahan and Strahan involved a dispute between a husband and wife over the division of their matrimonial property. The case was heard in the Supreme Court of South Australia. The husband appealed against the decision of the Family Court, which had ordered a particular division of their assets. The legal issues that the Supreme Court needed to address were whether the Family Court had correctly applied the principles of the Family Law Act 1975 (Cth) in making its orders, and whether the appeal was well-founded.

The Supreme Court found that the Family Court had correctly applied the principles of the Family Law Act in making its orders. The court noted that the Family Court had carefully considered the evidence and had made findings that were supported by the evidence. The court also found that the husband had not demonstrated that the Family Court had made an error of law or had failed to take into account a relevant consideration. As a result, the Supreme Court dismissed the husband’s appeal. The wife was ordered to pay the husband’s costs of the appeal, as well as the costs of the Independent Children’s Lawyer.

Orders

Orders of the court

1. That the appeal be dismissed.

2. That the wife pay the husband’s costs of and incidental to the appeal on a party and party basis as agreed or assessed.

3. The wife pay the Independent Children’s Lawyer’s costs and counsels fees in accordance with the Supreme Court of South Australia scale and Guide for counsel Fees.

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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