Wunscher & Licha - [2008] FamCAFC 155

FAMILY COURT OF AUSTRALIA

WUNSCHER & LICHA

[2008] FamCAFC 155

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – The central question for the trial Judge was the time the child is to spend with each of her parents and who should have parental responsibility for her – Child had lived with the mother and spent irregular time with her father – Previous orders were made for the child to spend continuing time with her father – In earlier proceedings the mother alleged sexual abuse of the child by the father – In the proceedings which are appealed against, the trial Judge ordered that child live with the father and that he have sole parental responsibility for her – The mother was restrained from contacting or communicating with the child save as to when, in his discretion, the father arranged for time to be spent by the child with her mother and whether or not it was to be supervised – Mother appealed all orders – Basic challenge on appeal goes to the allocation of parental responsibility, the residential arrangements and absence of provision for the mother to spend time with the child – The appeal challenges the order that the mother bear the costs of any supervision and an order providing for the arrest of the mother without warrant, should she remove the child from the father’s possession – The mother seeks equal shared parental responsibility, with the child living with her and spending time with the father

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – Appeal against the exercise of the trial Judge’s discretion – Generic grounds of appeal – Complaints amounted to the proposition, not that the conclusion of the trial Judge was not open, but that another conclusion should have been reached – Merit found in one ground of appeal relating to the fact that the mother was not given any notice of a proposal that provision be made for her arrest without warrant

FAMILY LAW - APPEAL – Re-exercise of discretion – Full Court reached same result as trial Judge with respect to the provision for an arrest of the mother without warrant

FAMILY LAW - APPEAL – No merits in other grounds of appeal – Appeal dismissed – Costs ordered against appellant

Family Law Act 1975 (Cth), s 60CC, s 70NAE, s 117(2A)

Johnson v Johnson (No.3) (2000) FLC 93-041
Rice & Asplund (1979) FLC 90-725
Watson & Morton [2007] FLC 93-331

APPELLANT:

MS WUNSCHER

RESPONDENT:

MR LICHA

APPEAL NUMBER:

2008

FILE NUMBER:

MLF

6928

2003

DATE DELIVERED:

23 October 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick, May, Boland JJ

HEARING DATE:

8 October 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 March 2008

LOWER COURT MNC:

[2008] FamCA 147

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr A Combes

SOLICITOR FOR THE APPELLANT:

Maria Barbayannis & Co. Lawyers

COUNSEL FOR THE RESPONDENT:

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: Wunscher & Licha [2008] FamCAFC 155
Case: [2008] FamCAFC 155
Decision Date: 23 October 2008

CaseChat Overview and Summary

In this case, the mother sought to appeal a decision of the Family Court, which involved complex family law issues concerning the care, residence, and parental responsibility of a child. The central dispute was the allocation of parental responsibility and the residential arrangements for the child, as well as the amount of time the child would spend with each parent. The mother argued for equal shared parental responsibility and for the child to live with her, while the father had been granted sole parental responsibility and the child was ordered to live with him. The mother also contested orders that she bear the costs of any supervision and that she be arrested without warrant if she removed the child from the father's possession.

The legal issues before the court involved the exercise of discretion by the trial judge, with the mother challenging the conclusion reached by that judge, not on the basis that it was not open to the judge to make, but rather that a different conclusion should have been reached. The mother also argued that she was not given adequate notice of a proposal for her arrest without warrant. The court had to consider whether the trial judge's decision was appropriate, whether the mother had been given proper notice, and whether the other orders made were justified.

The court found that the trial judge's exercise of discretion was appropriate and that the mother had not demonstrated that the conclusion reached was not open to the trial judge. The court also determined that the mother had not been given proper notice of the proposal for her arrest without warrant, but this did not change the overall result. The Full Court upheld the trial judge's decision regarding the arrest order and found no merit in the other grounds of appeal. The appeal was dismissed, and the mother was ordered to pay the father's costs of and incidental to the appeal.

The final orders of the court were that the appeal be dismissed and that the mother pay the father's costs of and incidental to the appeal as agreed, or in default of agreement, as assessed. The court's decision upheld the trial judge's allocation of parental responsibility and residential arrangements for the child, while also addressing the procedural issue regarding the mother's notice of the arrest order.

Orders

Orders of the court

That the appeal be dismissed.

That the mother pay the father’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.

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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