Walsh and Maher - [2020] FamCAFC 7

FAMILY COURT OF AUSTRALIA

WALSH & MAHER

[2020] FamCAFC 7

FAMILY LAW – APPEAL – PARENTING – Where the trial judge made orders that the children’s time with the father be reduced from five nights per fortnight to three – Where the trial judge made findings that the children are at a risk of psychological harm by reason of exposure to the father’s views of the mother and his inclusion of the children in the parental conflict – Where the trial judge made an order that the father pay the mother’s costs of the proceedings – Where the father’s contentions on appeal include complaints as to the inadequacy of reasons, errors of discretion and inappropriate weight – Where the father’s grounds of appeal are without merit, save for the challenge to the costs order – Where the trial judge gave no reasons for making a costs order – Where the appeal succeeds only in respect of the costs order made – Where only that issue is remitted – Where the father’s application for a costs certificate is denied – Where the mother is granted a costs certificate for the appeal and the rehearing on the issue of costs of the proceedings.

Family Law Act 1975 (Cth) ss 60CC, 94AAA(3), 117
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8

Family Law Rules 2004 (Cth) rr 22.45(2), 24.05(2)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
R and R: Children’s Wishes (2000) FLC 93-000; [2000] FamCA 43
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Simmons & Kingley [2014] FamCAFC 47
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

APPELLANT:

Mr Walsh

RESPONDENT:

Ms Maher

FILE NUMBER:

BRC

9510

2012

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

16 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

16 January 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 June 2019

LOWER COURT MNC:

[2019] FCCA 1940

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cameron

SOLICITOR FOR THE APPELLANT:

MCH Family Law

THE RESPONDENT:

In person

Orders

IT IS ORDERED:

The Appellant Father have leave to file and rely upon his Summary of Argument for the appeal.
The appeal from Order (41) of the orders made on 11 June 2019 in the Federal Circuit Court of Australia be allowed and that order be set aside.
The issue as to costs of the proceedings, the subject of Order (41), be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.
The appeal be otherwise dismissed.
The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a…

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 Walsh and Maher

Details

AGLC: Walsh and Maher [2020] FamCAFC 7
Case: [2020] FamCAFC 7
Decision Date: 16 January 2020

CaseChat Overview and Summary

In the case of Walsh and Maher, the father appealed against the orders made by the Federal Circuit Court of Australia on 11 June 2019. The primary dispute centered on the custody arrangements and time allocation for the children between the father and the mother. The father contested the trial judge's decision, arguing that the reasoning provided was inadequate and that the order for costs was made without proper justification.

The legal issues the court needed to decide included whether the trial judge provided sufficient reasoning for her conclusion and whether the order for costs was justified. The father argued that the trial judge's reasons for judgment were inadequate and did not properly address the concerns about the father's emotional unpredictability and communication with the mother. Additionally, the father challenged the lack of reasoning provided for the order for costs.

The court found that while the reasons for judgment were clear and sufficient when read as a whole, there was no reasoning provided for the order for costs. The court concluded that the appeal against the order for costs should be allowed, and the matter of costs should be remitted to the Federal Circuit Court of Australia for rehearing by a different judge. The court dismissed the appeal in all other respects and granted the mother a costs certificate for the appeal and the rehearing.

The court's final orders included allowing the father leave to file and rely on his Summary of Argument, setting aside the order for costs, remitting the issue of costs for rehearing by a different judge, and granting the mother costs certificates for the appeal and rehearing. Additionally, by consent, the father was ordered to pay a specified amount to the mother by a certain date.

Orders

Orders of the court

IT IS ORDERED:

The Appellant Father have leave to file and rely upon his Summary of Argument for the appeal.

The appeal from Order (41) of the orders made on 11 June 2019 in the Federal Circuit Court of Australia be allowed and that order be set aside.

The issue as to costs of the proceedings, the subject of Order (41), be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.

The appeal be otherwise dismissed.

The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 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 the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.

The Court grants to the Respondent Mother a costs certificate pursuant to 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 the Respondent Mother in respect of the costs incurred by her in relation to the rehearing ordered.

IT IS FURTHER ORDERED BY CONSENT:

By close of business on Friday 17 January 2020, the amount of $3,273.93 be paid by the Appellant Father to the Respondent Mother, if such payment has not already been attended to.

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

The report writer also gave this evidence in the course of his cross-examination after counsel for the mother had taken him through the then recent issue of X’s school trip (Transcript 21 May 2019, p.189 lines 14–47):That doesn’t give you much confidence about any improvement in communication, does it?---No. No. It doesn’t.If the communication is still of that quality, it tends to realise some of the fears that you were concerned about when you were expressing your opinion in your report, doesn’t it, [Mr D]?---From the point that you’ve provided me, yes.And all of these questions are premised on the notion that her Honour makes findings consistent with the propositions I’m putting to you, of course. If those fears are realised in that way, then it does tend to suggest that the better outcome for these children would be to minimise their exposure, effectively, to the father, doesn’t it?---If – well, the communication between the father and the mother sounds as though it’s still fraught.Sure?---And it would appear that it’s always going to be fraught. The example of the – the [Country P] trip serves as an example of [X] being placed in the middle of an issue between the parents and being, perhaps, used in that way. I wonder – I wonder whether these examples are sufficient to extrapolate to the time arrangements. I would be particularly concerned if the court were concerned of the – about the – about there being ongoing emotional unpredictability on the father’s part, such as we saw towards the end of 2016 in particular. The examples given since that time have been concerning, but not as profound as that particular example. I would certainly be concerned if the court were to form a view that the father is likely to continue to raise issues with the father about it being mum’s fault.HER HONOUR: Sorry, to raise issues with the children about it being mum’s fault; is that what - - -?---Yes, about things being mum’s fault, e.g., “I’m sorry your mum’s causing this”, that type of comment, or comments about mum being crazy or mentally ill. So if the court had a view that those sorts of – particularly the emotional unpredictability of the father were a continued problem, and I suppose I’m disappointed to hear that my recommendations around the father engaging with a practitioner have not been taken up until very recently, apparently. So if the court – if the court were still concerned about that, I think a reduction of the time with the father would be a reasonable consideration.(Emphasis added) In my judgment, when the reasons for judgment are read as a whole it is clear the path of her Honour’s reasoning for her conclusion is clear, and there is no substance in the complaint as to the adequacy as to the reasons the trial judge provided. Grounds 8 and 9 of the appeal are directed to the order for costs her Honour made at Order (41). As discussed in exchanges in the course of argument of the appeal there are simply no reasons given by her Honour for this order, and no mention made of costs or an application of s 117 of the Act.