Stringer & Nissen (No. 2) - [2019] FamCAFC 185

FAMILY COURT OF AUSTRALIA

STRINGER & NISSEN (NO. 2)

[2019] FamCAFC 185

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Appeal against interim parenting orders as to with whom the child should live, contingent on where either party would reside – Failure to engage with evidence as to child’s best interests – Where the mother unilaterally decided to relocate with the child and the father unilaterally decided not to return the child to the mother’s care – Family violence – Where the approach to evidence of family violence was flawed – Challenges made out – Appeal allowed – Matter remitted for rehearing – Cost certificates granted for the appeal and rehearing.

Family Law Act 1975 (Cth) ss 60CC, 61DA and 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9

Morgan & Miles (2008) 38 Fam LR 275; [2007] FamCA 1230
Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100
Sampson & Hartnett(No 10) (2007) 38 Fam LR 315; [2007] FamCA 1365

APPELLANT:

Ms Stringer

RESPONDENT:

Mr Nissen

FILE NUMBER:

SYC

1926

2019

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

23 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

23 October 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2019

LOWER COURT MNC:

[2019] FCCA 1159

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Cotter-Moroz

SOLICITOR FOR THE APPELLANT:

John Hertz & Associates

COUNSEL FOR THE RESPONDENT:

Mr Apelbaum

SOLICITOR FOR THE RESPONDENT:

Legalworks Pty Ltd

Orders

The appellant be granted leave to file and rely on the Further Amended Notice of Appeal received on 9 October 2019.
The appellant be granted leave to file and rely on the Amended Summary of Argument and List of Authorities received on 18 October 2019.
The respondent’s Application in an Appeal filed 9 October 2019 to adduce further evidence by the issue of a subpoena be dismissed.
The appeal against the Orders of Judge Morley made on 5 April 2019 is allowed.
Orders 1–13 and 15 of the Orders made on 5 April 2019 be set aside.
The matter be remitted for rehearing by a judge of the Federal Circuit Court other than Judge Morley.
There be no order as to costs.
The Court grants to the appellant costs certificates pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and the new trial in the matter.
The Court grants to the respondent costs certificates pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent in respect of the costs incurred by…

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 Stringer & Nissen (No. 2)

Details

AGLC: Stringer & Nissen (No. 2) [2019] FamCAFC 185
Case: [2019] FamCAFC 185
Decision Date: 23 October 2019

CaseChat Overview and Summary

Stringer and Nissen (No. 2) involved the parents of a child, born in 2014, disputing their child’s residence and contact arrangements. The matter was heard by the Family Court of Australia. The Federal Circuit Court of Australia subsequently heard an appeal from the mother against Judge Morley’s orders. The appeal was heard by the Full Court of the Federal Circuit Court of Australia.

The appeal raised questions about whether the primary judge had erred in his assessment of the evidence and whether he had exercised his discretion to make orders that were appropriate and in the best interests of the child. The court was required to determine whether the appeal should be allowed and whether the orders made by Judge Morley should be set aside. The court also needed to decide whether the appellant should be granted leave to file and rely on certain documents and whether the respondent’s application to adduce further evidence should be dismissed.

The court found that Judge Morley had erred in his assessment of the evidence and had not exercised his discretion to make orders that were appropriate and in the best interests of the child. The court set aside the orders made by Judge Morley and allowed the appeal. The court granted the appellant leave to file and rely on the Further Amended Notice of Appeal and the Amended Summary of Argument and List of Authorities. The court dismissed the respondent’s application to adduce further evidence. The court remitted the matter for rehearing by a judge of the Federal Circuit Court other than Judge Morley.

The court ordered that the appellant mother have sole parental responsibility for the child and that the child live with the appellant mother. The court ordered that the child spend time with the respondent father as agreed between the parties. The court also ordered that the respondent father deliver the child to the appellant mother at a specified time and place. The court granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth). The court did not make any order as to the costs of the appeal.

Orders

Orders of the court

The appellant be granted leave to file and rely on the Further Amended Notice of Appeal received on 9 October 2019.

The appellant be granted leave to file and rely on the Amended Summary of Argument and List of Authorities received on 18 October 2019.

The respondent’s Application in an Appeal filed 9 October 2019 to adduce further evidence by the issue of a subpoena be dismissed.

The appeal against the Orders of Judge Morley made on 5 April 2019 is allowed.

Orders 1–13 and 15 of the Orders made on 5 April 2019 be set aside.

The matter be remitted for rehearing by a judge of the Federal Circuit Court other than Judge Morley.

There be no order as to costs.

The Court grants to the appellant costs certificates pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and the new trial in the matter.

The Court grants to the respondent costs certificates pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent in respect of the costs incurred by him in relation to the appeal and the new trial in the matter.

IT IS FURTHER ORDERED THAT:

10.

Pending further order, the appellant mother have sole parental responsibility for X, born in 2014 (“the child”).

11.

Pending further order, the child live with the appellant mother.

12.

Pending further order, the child spend time with the respondent father as agreed between the parties.

13.

The respondent father will deliver the child to the appellant mother at 12 noon in the car park at B Street McDonalds, Town A on Sunday 27 October 2019.

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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