Boyce & Boyce

Case [2015] FamCAFC 60

FAMILY COURT OF AUSTRALIA

BOYCE & BOYCE [2015] FamCAFC 60

FAMILY LAW – APPLICATION IN AN APPEAL – TRANSCRIPT – Where leave is granted for the appeal to be heard without the requirement to include all transcripts of the trial proceedings in the appeal books.

FAMILY LAW – APPEAL – CHILDREN – Appeal of an order for sole parental responsibility – Where the trial judge made a finding of family violence – Pursuant to s 61DA(2), where a finding of family violence is made the presumption of equal shared parental responsibility does not apply – Where it is found that the parents are unable to communicate – Where the order for time a child would spend with the father is appealed – Where s 65DAA is not activated and the Court is to make such parenting orders as it thinks proper under s 65D – Where it is found that the trial judge’s Reasons for Judgment adequately support the conclusion reached – Appeal dismissed.
Family Law Act 1975 (Cth)

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1999) 197 CLR 172
House v The King (1936) 55 CLR 502
APPELLANT: Mr Boyce
RESPONDENT: Ms Boyce
FILE NUMBER: PAC 5761 of 2010
APPEAL NUMBER: EA 159 of 2013
DATE DELIVERED: 22 April 2015
PLACE DELIVERED: Brisbane
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Ryan and Kent JJ
HEARING DATE: 3 September 2014
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 25 October 2013
LOWER COURT MNC: [2013] FCCA 1689

REPRESENTATION

THE APPELLANT: In person
THE RESPONDENT: In person

Orders

  1. On the application in an appeal filed 29 May 2014, leave be granted to the appellant to dispense with the requirement to include the transcript of 11 and 12 February 2013 and 1 July 2013 in the Appeal Books.

  2. That the appeal be dismissed.

  3. That there be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyce & Boyce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 159 of 2013
File Number: PAC 5761 of 2010

Mr Boyce

Appellant

And

Ms Boyce

Respondent

REASONS FOR JUDGMENT

Introduction

  1. By an Amended Notice of Appeal filed on 15 May 2014 (leave to amend was not opposed and was granted at the hearing of the appeal) Mr Boyce (“the father”) appeals from final parenting orders made by Judge Dunkley in the Federal Circuit Court on 25 October 2013.

  2. By an Application in an Appeal filed on 29 May 2014 the father sought to have the appeal heard and determined without transcripts of the trial proceedings on 11 and 12 February 2013 and 1 July 2013.  Ms Boyce (“the mother”) did not oppose that application and on the basis that we were satisfied that the appeal could be properly and…

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Boyce & Boyce [2015] FamCAFC 60
Case
[2015] FamCAFC 60
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of Boyce & Boyce involved an appeal regarding an order concerning the parental responsibility for a child. The father, the appellant, challenged the trial judge's decision that awarded sole parental responsibility to the mother and limited his access to the child. The appeal arose from the trial judge's finding of family violence and the inability of the parents to communicate effectively, which led to the presumption of equal shared parental responsibility not applying under section 61DA(2) of the Family Law Act.

The primary legal issue before the court was whether the trial judge's determination to grant sole parental responsibility to the mother, and to limit the father's access to the child, was supported by the evidence and was in the best interest of the child. The court also needed to consider whether the trial judge's reasons for judgment sufficiently supported the conclusions reached. Additionally, the court had to determine if section 65DAA of the Act applied, which would have required the court to consider the child's need for a meaningful relationship with both parents.

The court found that the trial judge's reasons for judgment were comprehensive and adequately supported the conclusion that sole parental responsibility should be awarded to the mother. The court accepted the trial judge's findings of family violence and the inability of the parents to communicate, which justified the limitation of the father's access to the child. The court determined that section 65DAA did not apply as it was not activated, and therefore, the court was to make such parenting orders as it thought proper under section 65D. As a result, the appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

1.

On the application in an appeal filed 29 May 2014, leave be granted to the appellant to dispense with the requirement to include the transcript of 11 and 12 February 2013 and 1 July 2013 in the Appeal Books.

2.

That the appeal be dismissed.

3.

That there be no order as to costs.

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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