WITSON & KROPP - [2020] FamCAFC 218

FAMILY COURT OF AUSTRALIA

WITSON & KROPP

[2020] FamCAFC 218

FAMILY LAW – APPEAL – RELOCATION – Where the appellant unilaterally moved to B Town with the child of the relationship – Where the primary judge put in place appropriate injunctions to address the appellant’s allegations of violence, and the mutual allegations of drug and alcohol use to ensure the safety of the appellant and the child – Where the primary judge was faced with the unilateral relocation of the child which had the consequence of at the very least impeding and at worse preventing development of a relationship between the child and the respondent – Where it is not only in B Town that the appellant has extended family and the inference to be drawn here is that the appellant could have the benefit of extended family and support of the child’s connection to her Aboriginal culture and traditions in Adelaide – Where this was an interim hearing and given the issues confronting the primary judge it is readily apparent that the primary judge provided adequate reasons and had regard to the relevant sections of the Family Law Act 1975 (Cth) – Where no error of law or mistake of fact is alleged or demonstrated and thus there is no basis for finding that the primary judge’s decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where such an order should not be made – No order for costs.

Family Law Act 1975 (Cth) ss 60CC, 60CC(2A), 61DA, 65DAA

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Sterry & Sterry [2017] FamCAFC 226

APPELLANT:

Ms Witson

RESPONDENT:

Mr Kropp

FILE NUMBER:

ADC

279

2020

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

3 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

6 August 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 April 2020

LOWER COURT MNC:

[2020] FCCA 1054

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Dickson

SOLICITOR FOR THE APPELLANT:

Women’s Legal Service

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Dixon Gallasch Pty Ltd

Orders

The appeal be dismissed.
There be no order as to 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 Witson & Kropp 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…

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: WITSON & KROPP [2020] FamCAFC 218
Case: [2020] FamCAFC 218
Decision Date: 3 September 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Witson & Kropp involved a dispute over the relocation of a child by one parent, the appellant, without the consent of the other parent, the respondent. The appellant had moved to B Town with the child, impeding the development of a relationship between the child and the respondent. This unilateral action occurred amidst allegations of violence and drug and alcohol use by both parties, which had been addressed by the primary judge through appropriate injunctions to ensure safety. The court was required to determine whether the primary judge's decision was correct in the context of the interim hearing and whether there was any merit in the grounds of appeal regarding the relocation and costs.

The primary judge had made a decision based on the Family Law Act 1975 (Cth) and had provided adequate reasons for the injunctions and the handling of the relocation issue. The court found that the primary judge had considered the relevant factors, including the benefit of extended family support and the child's connection to her Aboriginal culture in Adelaide. The appellant's ability to access support in B Town did not outweigh the importance of maintaining the child's relationship with the respondent. The court concluded that there was no error of law or mistake of fact demonstrated by the appellant, and thus, the primary judge's decision was not plainly wrong.

The court dismissed the appeal, finding no merit in the grounds presented by the appellant. Given the interim nature of the hearing, the court held that the primary judge's decision was appropriate and supported by the evidence and the law. The respondent's application for costs was also dismissed, as the court found that no order for costs should be made in this matter. The appeal was dismissed, and there was no order as to costs, subject to the entry of the order in the court's records.

Orders

Orders of the court

The appeal be dismissed.

There be no order as to 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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