WALTERS & FLEETWOOD - [2015] FamCAFC 235

FAMILY COURT OF AUSTRALIA

WALTERS & FLEETWOOD

[2015] FamCAFC 235

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Assessment of risk – Assessment of parenting capacity – Where errors are not material to the exercise of discretion by the primary judge – No appellable error established – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – Application to adduce further evidence in an appeal – Application dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Walters

RESPONDENT:

Mr Fleetwood

INDEPENDENT CHILDREN’S LAWYER:

Leanne Walsh

FILE NUMBER:

BRC

7101

2012

APPEAL NUMBER:

2014

DATE DELIVERED:

11 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE:

2 December 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 March 2014

LOWER COURT MNC:

[2014] FCCA 580

REPRESENTATION

FOR THE APPELLANT:

In person

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DA Family Lawyers

Orders

The application to adduce further evidence in the appeal filed on 18 November 2014 be dismissed.
The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walters & Fleetwood has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 21 of 2014
File Number: BRC 7101 of 2012

Ms Walters

Appellant

And

Mr Fleetwood

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 14 August 2014, Ms Walters (“the mother”) appeals against parenting orders made by Judge Howard of the Federal Circuit Court pursuant to Part VII of the Family Law Act 1975 (Cth) on 8 April 2014. The orders concern the parties’ daughter, N who was born in 2010 (“the child”).
As a consequence of the orders made by the primary judge, the child left the mother’s primary care to live with the father who has sole parental responsibility. After two months, during which the mother was restrained from having any type of contact with the child, the orders provide for her to spend time with the child for half of the school holidays, on special occasions and either each alternate or every third weekend during school term. If the mother lives within 100 kilometres of the father’s home the alternate weekend formula applies and, if the distance is greater, the three week scheme operates.
In addition, the mother was ordered to attend her general medical practitioner in relation to depression and a psychologist or psychiatrist for treatment of “severe post traumatic embitterment disorder”. Further, the mother was required to attend upon her general medical practitioner to obtain a referral for an alcoholic abstinence course and attend such course as directed. Otherwise, there is a series of orders designed to address the…

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 WALTERS & FLEETWOOD

Details

AGLC: WALTERS & FLEETWOOD [2015] FamCAFC 235
Case: [2015] FamCAFC 235
Decision Date: 11 December 2015

CaseChat Overview and Summary

Walters and Fleetwood were the parties involved in the appeal, which pertained to a dispute over final parenting orders. The matter was heard in the Family Court of Australia. The central issue was whether the primary judge had erred in his assessment of risk and parenting capacity in relation to the children. The appeal raised questions about the application of the best interests of the child principle and the evaluation of evidence presented during the original proceedings.

The court examined the contentions raised by the appellant, focusing on whether the primary judge had made any errors that were material to the exercise of his discretion. The appellant argued that there were significant errors in the assessment of risk and capacity. However, the court found that any errors identified did not materially impact the primary judge's exercise of discretion. The court emphasised that the primary judge had considered the evidence thoroughly and had applied the correct legal principles in making his determinations. Consequently, the court concluded that no appellable error had been established, and the appeal was dismissed.

Additionally, the court addressed an application to adduce further evidence in the appeal. The application sought to introduce new evidence that had not been considered in the original proceedings. The court dismissed the application, finding that the new evidence did not warrant a departure from the findings already made by the primary judge. The appeal was dismissed with no order as to costs.

Orders

Orders of the court

The application to adduce further evidence in the appeal filed on 18 November 2014 be dismissed.

The appeal be dismissed.

There be no order as to costs.

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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