Badrick and Gersam (No. 2) - [2020] FamCAFC 202

FAMILY COURT OF AUSTRALIA

BADRICK & GERSAM (NO. 2)

[2020] FamCAFC 202

FAMILY LAW – APPEAL – INTERIM PARENTING – Where the appealed orders provide for a very young child to live in a week about arrangement – Where the orders were not within the reasonable contemplation – Denial of procedural fairness – Where child was settled with the father – Mother retained child – Father’s application for the child to be returned dismissed – Risk of harm to the child by reason of the mother’s mental health and her partner’s history of family violence – Appeal allowed – Re‑exercise of discretion – Child to live with the father and spend time with the mother.

Family Law Act 1975 (Cth) s 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 9

Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Mr Badrick

RESPONDENT:

Ms Gersam

FILE NUMBER:

EAA

2020

APPEAL NUMBER:

SYC

2912

2020

DATE DELIVERED:

5 August 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

5 August 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

15 May 2020

LOWER COURT MNC:

[2020] FCCA 1567

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Guterres

SOLICITOR FOR THE APPELLANT:

Shipton & Associates

THE RESPONDENT:

Self-represented

Orders

That service of the Notice of Appeal (as amended) on Mr Hill be dispensed with.
That the Application in an Appeal filed 15 July 2020 to adduce further evidence be allowed in part.
The appeal be allowed.
Orders 4 and 5 made on 15 May 2020 be set aside.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by him in relation to this appeal.

PENDING FURTHER ORDER, IT IS ORDERED

That Z Hill (also known as Z Gersam-Badrick), born in 2017 (“the child”):
(a) live with the appellant father;
(b)spend time with the respondent mother from 3.00 pm on Friday until 4.00 pm on Sunday each alternate weekend, commencing from Friday 14 August 2020; and
(c)unless otherwise agreed by the parties, the mother shall deliver the child to the father’s residence at the conclusion of her time with the child, and the father deliver the child to the mother’s residence at the commencement of the mother’s time with the child.
That the applications for interim parenting orders the subject of this appeal, including any response, be…

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 Badrick and Gersam (No. 2)

Details

AGLC: Badrick and Gersam (No. 2) [2020] FamCAFC 202
Case: [2020] FamCAFC 202
Decision Date: 5 August 2020

CaseChat Overview and Summary

The case of Badrick and Gersam (No. 2) involved a dispute between the parties over parenting arrangements concerning a child born in 2017. The matter was heard by the Family Court of Australia, with the appeal subsequently considered by the Full Court of the Family Court. The father, the appellant, challenged the primary judge's decision to grant the mother, the respondent, sole parenting responsibility for the child, as well as the interim parenting orders that allowed the mother to have the child reside with her during certain periods. The father sought to appeal the primary judge’s decision, arguing that the child should live primarily with him, and that the mother should only have visitation rights.

The primary legal issue before the court was whether the primary judge had erred in making the orders that placed sole parenting responsibility with the mother, and whether these orders were in the best interests of the child. The court had to consider the evidence presented, including the views of the child, expert evidence, and the circumstances of both parents. Another issue was whether the application to adduce further evidence should be allowed, as well as the procedural fairness of the process.

The Full Court of the Family Court allowed the appeal in part, finding that the primary judge had erred in making the orders that placed sole parenting responsibility with the mother. The court determined that the orders were not in the best interests of the child, considering the evidence presented. The Full Court accepted that the child should primarily reside with the father, and set out specific visitation arrangements for the mother. The appeal in relation to the admission of further evidence was allowed in part, as the court permitted the father to adduce some new evidence that was relevant and necessary. The Full Court also set aside certain orders made by the primary judge on interim parenting, and granted the appellant a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

The court made several orders, including setting aside the primary judge’s orders regarding sole parenting responsibility and interim parenting arrangements. The child was ordered to primarily reside with the appellant father, with specific visitation arrangements for the respondent mother. The Full Court allowed the appeal, granted the application to adduce further evidence in part, and directed that there be no order as to costs. The court also granted the appellant a costs certificate, indicating that it would be appropriate for the Attorney-General to authorise a payment to the appellant for the costs incurred in relation to the appeal. The court further made interim orders for the child's residence and contact until the matter was finally resolved.

Orders

Orders of the court

That service of the Notice of Appeal (as amended) on Mr Hill be dispensed with.

That the Application in an Appeal filed 15 July 2020 to adduce further evidence be allowed in part.

The appeal be allowed.

Orders 4 and 5 made on 15 May 2020 be set aside.

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 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 appellant in respect of the costs incurred by him in relation to this appeal.

PENDING FURTHER ORDER, IT IS ORDERED

That Z Hill (also known as Z Gersam-Badrick), born in 2017 (“the child”):

(a) live with the appellant father;

(b) spend time with the respondent mother from 3.00 pm on Friday until 4.00 pm on Sunday each alternate weekend, commencing from Friday 14 August 2020; and

(c) unless otherwise agreed by the parties, the mother shall deliver the child to the father’s residence at the conclusion of her time with the child, and the father deliver the child to the mother’s residence at the commencement of the mother’s time with the child.

That the applications for interim parenting orders the subject of this appeal, including any response, be otherwise dismissed.

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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