FAMILY LAW - APPEAL – RELOCATION – Where the mother had been allowed to relocate with the children to Ireland – Where the mother had previously returned to Australia following Hague Convention proceedings
FAMILY LAW - CHILDREN – With whom a child spends time – Whether the trial Judge erred in making orders for indefinite supervised contact – Whether the trial Judge should have incorporated a “review mechanism” to remove the supervision requirement in the future – review mechanism not necessary – The father could meet the Rice v Asplund test by showing changed circumstances – Logistical difficulties involved in incorporating a “review mechanism”
FAMILY LAW - CHILDREN – Best interests of the child – Whether primary considerations in s 60CC(2) have priority over additional considerations in s 60CC(3)
FAMILY LAW - CHILDREN – “Meaningful relationship” – Matter for the Court not expert witness to decide – Findings of family violence
FAMILY LAW - CHILDREN – Equal shared parental responsibility – s 61DA – Whether the trial Judge erred in failing to apply the presumption of equal shared parental responsibility – findings of family violence – Open to the trial Judge to find the presumption does not apply
FAMILY LAW - COURTS AND JUDGES – Whether the trial Judge misled counsel by making preliminary remarks – Where the trial Judge had qualified his preliminary remarks – Where the relevant evidence was not excluded – Whether the trial Judge placed improper pressure on the father to withdraw his application for shared care
FAMILY LAW - EVIDENCE – Court Expert – Whether the manner in which the trial Judge asked questions of the Court Expert displayed bias – Whether the trial Judge had assumed the role of advocate – Where the father had made no complaint about the questions put to the Court Expert at the time the questions were asked
FAMILY LAW - APPEAL – Dismissed – no basis for 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
Champness & Hanson [2009] FamCAFC 96
Case
[2009] FamCAFC 96
Decision Date
CaseChat Overview and Summary
In the matter of Champness & Hanson, the father appealed the decision of the Family Court of Australia, which had allowed the mother to relocate to Ireland with their children. The father argued that the trial Judge had erred in making certain orders, including those regarding supervised contact, the application of the presumption of equal shared parental responsibility, and the interpretation of family violence findings. The appeal was ultimately dismissed by the Court of Appeal.
The primary legal issues that the Court of Appeal needed to decide were whether the trial Judge had erred in making orders for indefinite supervised contact and whether a review mechanism should have been incorporated to potentially remove the supervision requirement in the future. Additionally, the Court examined whether the primary considerations in section 60CC(2) of the Family Law Act had priority over the additional considerations in section 60CC(3). The Court also reviewed whether the trial Judge had assumed the role of an advocate and whether the findings of family violence justified the presumption of equal shared parental responsibility not applying.
The Court of Appeal found that the trial Judge had not erred in making the orders for indefinite supervised contact and that a review mechanism was not necessary. The father could demonstrate changed circumstances to meet the Rice v Asplund test. The Court held that the primary considerations in section 60CC(2) did not necessarily have priority over the additional considerations in section 60CC(3). Furthermore, the Court found that the trial Judge had not misled counsel or assumed the role of an advocate, and that the findings of family violence justified the presumption of equal shared parental responsibility not applying.
The Court of Appeal dismissed the father's appeal against the orders made by the Honourable Justice Burr on 30 June 2008. No orders were made as to costs.
Orders
Orders of the court
1.
That the father’s appeal against the orders of the Honourable Justice Burr made on 30 June 2008 be dismissed.