WEST & WEST - [2016] FamCAFC 238

FAMILY COURT OF AUSTRALIA

WEST & WEST

[2016] FamCAFC 238

FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – where the father appeals orders precluding him from having time or communicating with his children – where no error established – appeal dismissed.

FAMILY LAW – APPEAL – CHILDREN – Application in an Appeal – application by the father seeking provision of the transcript – application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA and 117(1)

APPELLANT:

Mr West

RESPONDENT:

Ms West

INDEPENDENT CHILDREN’S LAWYER:

Mr Terrence Newman

FILE NUMBER:

CSC

609

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

10 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

10 November 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

8 October 2015

LOWER COURT MNC:

[2015] FamCA 839

REPRESENTATION

THE APPELLANT:

In person by Videolink

COUNSEL FOR THE RESPONDENT:

Ms McArdle of Counsel

SOLICITOR FOR THE RESPONDENT:

Williams Family Law & Self Rep Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Newman Family Law

Orders

The application in an appeal filed by the father on 13 May 2016 be dismissed.
The Appeal be dismissed.
Each party to the appeal including the Independent Children’s Lawyer bear their own costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 79 of 2015
File Number: CSC 609 of 2014

Mr West

Appellant

And

Ms West

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Murphy J

The father of three children, B, aged 16, C, aged 14, and D, aged six, appeals orders made by Tree J on 8 October 2015 that preclude the father from having any time with or communicating with his children. In addition, his Honour granted injunctions which, for example, restrain the father from “harassing, molesting or stalking the mother and/or the children” and “spending time with or attempting to contact or approach the children”.
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) include specifically s 60B(1)(a) which provides that the best interests of children are to be met by “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. It can be appreciated, then,…

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.

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Details

AGLC: WEST & WEST [2016] FamCAFC 238
Case: [2016] FamCAFC 238
Decision Date: 10 November 2016

CaseChat Overview and Summary

In this matter, the father sought to appeal a decision made in the Family Court, which had imposed restrictions on his access to and communication with his children. The appeal was brought before the Family Court of Australia, which was tasked with determining whether the lower court's decision was erroneous. The legal issues at hand were primarily concerned with the interpretation and application of the Family Law Act 1975 and the principles guiding the court's determination of the best interests of the children.

The court meticulously examined the evidence presented and the reasoning behind the lower court's decision. It found that the lower court had appropriately balanced the welfare of the children against the father's right to maintain a relationship with them. The court was satisfied that the restrictions placed on the father were in the children's best interests, given the circumstances of the case, and did not find any basis to conclude that the lower court had erred in its judgment. The appeal was therefore dismissed without any established error.

Consequently, the appeal filed by the father was dismissed in its entirety. The court ordered that each party involved in the appeal, including the Independent Children’s Lawyer, bear their own costs associated with the proceedings. This decision underscores the importance of adhering to the principles of family law and the paramount consideration of the children's best interests in such disputes.

Orders

Orders of the court

The application in an appeal filed by the father on 13 May 2016 be dismissed.

The Appeal be dismissed.

Each party to the appeal including the Independent Children’s Lawyer bear their own costs.

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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