BEST & BEST - [2013] FamCAFC 5

FAMILY COURT OF AUSTRALIA

BEST & BEST

[2013] FamCAFC 5

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders providing for his time with the parties’ four children to be on a supervised and then unsupervised basis – Where the amended notice of appeal contained 37 grounds – Where the primary issue for determination in the appeal relates to an order serving as a condition to the father’s time with the children, that he attend a psychiatrist “no less than monthly” until the end of 2013 – Where part of the further evidence sought to be adduced by the appellant father demonstrates that, although involving no error at the time the order was made, to continue the requirement of “no less than monthly” consultations with the father’s psychiatrist can now be seen as erroneous – Where another order the subject of the appeal is incapable of enforcement – Appeal allowed to the extent that the orders be varied – Where the variation to the orders results in difficulty as to how the orders, in particular those regarding the father’s time with the children, can properly function – Where the proper course is to set aside the orders regarding the father’s time with the children and remit that issue for rehearing.

FAMILY LAW – APPEAL – Application to adduce further evidence – Where part of the further evidence sought to be adduced by the appellant demonstrates that, although involving no error at the time the particular order was made, that order can now be seen as erroneous – Where the appeal is to be allowed and the matter remitted for rehearing, at which time relevant further evidence could be considered – Where the application in the appeal is therefore rendered unnecessary – Applications dismissed.

Family Law Act 1975 (Cth) Part VII; ss 93A

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953)
94 CLR 621
British American Tobacco Australia Services Limited v Laurie and others (2011)
242 CLR 283
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) 23 ALR 211
Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337
Edwards v Noble (1971) 125 CLR 296
Johnson v Johnson (2000) 201 CLR 488
Lovell v Lovell (1950) 81 CLR 513

APPELLANT:

Mr Best

RESPONDENT:

Ms Best

INDEPENDENT CHILDREN’S LAWYER:

Michael Davies

FILE NUMBER:

WOC 91 of 2010

APPEAL NUMBER:

EA 23 of 2012

DATE DELIVERED:

1 February 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May and Ainslie-Wallace JJ

HEARING DATE:

19 November 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 February 2012

LOWER COURT MNC:

[2012] FamCA 28

REPRESENTATION

THE APPELLANT:

Self Represented

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

DGB Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Mr Jackson

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Maguire & McInerney Lawyers

Orders

The appeal be allowed.
Paragraph 4 of the orders made by Ryan J on 3 February 2012 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.

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Details

AGLC: BEST & BEST [2013] FamCAFC 5
Case: [2013] FamCAFC 5
Decision Date

CaseChat Overview and Summary

This appeal concerns parenting orders made by the Family Court of Australia in proceedings brought under Part VII of the Family Law Act 1975 (Cth). The father appeals against orders which provide that the children of the former relationship between the parties, who are now aged 13, 12, 7 and 5, live with the mother who was to have sole parental responsibility for them, and spend time with the father on a defined basis, initially supervised and, as and from the commencement of Term 4 in the 2012 school year unsupervised. The father sought that the parties have equal shared parental responsibility for the children and that the children spend equal time with each parent on a “rotating fortnightly basis”. The mother resisted the father’s appeal, as did the Independent Children’s Lawyer (“ICL”).The father appealed against the parenting orders made by Ryan J on 3 February 2012 and the decision of Rees J dismissing the father’s contravention application for alleged breaches of those orders, on 28 September 2012. The two appeals were heard together, however, it was appropriate given the discrete nature of the appeals to deliver separate reasons for judgment.The father agitated 37 grounds of appeal. The Court rejected all of them. The father also sought to adduce further evidence. The Court dismissed those applications.The Court allowed the appeal in relation to the parenting orders. The Court varied order 6.1 of the parenting orders by deleting from the said order the words “no less than monthly”. The Court set aside order 6.3 of the parenting orders. The Court set aside the parenting orders regarding the father’s time with the children and remitted that issue for rehearing. The Court dismissed the father’s application to adduce further evidence. The Court made no order for costs.

Orders