Bagley and Snell - [2010] FamCAFC 8

FAMILY COURT OF AUSTRALIA

BAGLEY & SNELL

[2010] FamCAFC 8

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal from interim parenting orders – Same-Sex couple – Appellant sought no orders for time with the respondent – Appellant submitted the Federal Magistrate erred by wrongly equating the respondent to a parent, failing to adhere to the Goode & Goode pathway, erring in the application of s 60CC and failing to adequately weigh issues of credit – Final hearing in the matter listed for hearing in a few weeks time – No merit in any ground of appeal – Appeal dismissed – Had merit been found the circumstances of this case with the proximity of the final hearing, and difficulty in remitting or re-exercising, would have lead to the orders remaining undisturbed and effective dismissal of the appeal

Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) s 60B; s 60CC; s 65C; s 65DAA

Church & S Overton & Anor [2008] FamCA 952

APPELLANT:

Ms BAGLEY

RESPONDENT:

Ms SNELL

APPEAL NUMBER:

128

2009

FILE NUMBER:

SYC

5477

2009

DATE DELIVERED:

29 January 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick J

HEARING DATE:

21 January 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

9 October 2009

LOWER COURT MNC:

[2009] FMCAfam 1144

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Longworth

SOLICITORS FOR THE APPELLANT:

Dettmann Longworth

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Watts McCray

Orders

That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bagley & Snell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 128 of 2009
File Number: SYC 5477 of 2009

Ms BAGLEY

Appellant

And

Ms SNELL

Respondent

REASONS FOR JUDGMENT

R Snell Bagley was born in November 2005, to Ms Bagley. Before her birth, the mother had commenced a romantic relationship with Ms Snell, a medical practitioner. Dr Snell and the mother commenced cohabitation about a month after R’s birth and they substantially lived in the same residence until early 2009, although the relationship may have broken down prior to that time. After the physical separation of the parties, though living primarily with her mother, R spent time regularly, including some overnight time, with Dr Snell. In mid-June 2009, following a mediation, R spent Tuesday afternoons, till 7.00pm, from 8.00am Thursdays until child care on Fridays and from early afternoon Sundays until child care on Mondays, with Dr Snell. However, in August 2009, the mother unilaterally stopped the child spending time with Dr Snell. Dr Snell commenced proceedings in the Federal Magistrates Court of Australia at Sydney.
On 9 October 2009, Federal Magistrate McGuire made interim orders, including that R spend time with Dr Snell from the conclusion of child care each Wednesday until the commencement of child care each Friday…

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 Bagley and Snell

Details

AGLC: Bagley and Snell [2010] FamCAFC 8
Case: [2010] FamCAFC 8
Decision Date: 29 January 2010

CaseChat Overview and Summary

In the case of Bagley and Snell, the appeal arose from a decision made by McGuire FM concerning parenting orders. The central issue was whether the Federal Magistrate erred in applying the correct legal test when determining the appropriate parenting arrangements for the child. Specifically, the appeal questioned whether McGuire FM correctly assessed the applicant's health in relation to the child's contact and whether he appropriately balanced the factors in accordance with the best interests of the child.

The court was required to decide if McGuire FM correctly applied the legal test for making parenting orders under sections 60B and 60CC. The appellant argued that the Magistrate should have applied a different test, focusing on the best interests of the child rather than assuming contact unless there was evidence to indicate otherwise. Additionally, the appeal contended that McGuire FM failed to adequately identify and address the specific issues in dispute, including the nature of the relationships and the impact of the respondent's actions on the child and the mother.

The court found that McGuire FM had indeed considered the best interests of the child and had appropriately balanced the relevant factors. The Magistrate's analysis, while not explicitly stating the best interests test in the exact terms argued by the appellant, was sufficiently aligned with the statutory requirements. Furthermore, the court held that McGuire FM did not fail to identify the issues in dispute, as the appellant claimed. The court concluded that the Magistrate's reasoning and the outcomes reached were consistent with the applicable legal principles.

The appeal was dismissed, with the court affirming the decision of the Federal Magistrate.

Orders

Orders of the court

That the appeal be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As seen, Ground 21 asserts, “That his Honour misdirected himself as to the test to be applied in making parenting orders”. This ground calls into question what Mc Guire FM said in paragraph 33 of his reasons. As seen a few paragraphs before, in the immediately preceding paragraphs, his Honour had discussed the matter of conflict between the mother and Dr Snell. Then he said:32.The applicant it seems has, from the evidence tendered, some history of depression and similar illnesses. It is also quite clear on the evidence however that she has sought assistance historically over time in respect of this condition. It is true, and there is some merit in the submissions of counsel for the respondent, that the applicant might perhaps have volunteered this information in her initiating affidavit rather than it coming to the court’s attention from the respondent. Equally there is some merit that the court would have been assisted by some objective prognosis as to the applicant’s condition, if any. 33.Nevertheless, I am looking at the short term and more immediate situation for the child. To put the issue in the sense of almost a double-negative, I ask the question is there evidence of such probity to convince me that there should not be contact between the child and the applicant on the basis of the applicant’s health. Considering the evidence, I am not of the view that this is the case. (emphasis added) The argument is that the proper test was, not as highlighted in the above passage, which assumes contact unless evidence indicates to the contrary, but, in the context of ss 60B and 60CC, “what was in the best interests of the child”. As outlined earlier, in a category to be considered later, there are assertions that the learned Magistrate erred in considering the best interests of the child. Further passages constituting the context of paragraph 33 of the Federal Magistrate’s reasons will be then set out. For the moment, I simply express the view that the learned Magistrate had, earlier in his reasons, outlined the support for an order for the child to spend time with Dr Snell, as being in the child’s best interests. In paragraph 33, he was not questioning whether some assumption in favour of contact was rebutted, but was merely balancing factors against those that supported contact. Ground 5 is the relevant ground. It is:5.His Honour failed to follow the guidelines provided in Goode & Goode and in particular filed to identify the issues in dispute.Particulars(a) The allegation by the Applicant that the Respondent was both undermining her parenting and trying to usurp her role as the child’s mother;(b) The nature of the child’s relationship with the Respondent;(c) The nature of the relationship between the parties;(d) The impact of the relationship on the mother’s parenting;(e) The impact on the child of competition by the Respondent for the role of mother; and(f) The mental health of the Respondent.(g) The impact on the mother’s parenting of any arrangement of time spent between the Respondent and the child.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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