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CRABMAN & CRABMAN

CRABMAN & CRABMAN

Case [2013] FamCAFC 104

Jurisdiction

Equal Shared Parental Responsibility

Best Interests of the Child

Substantial and Significant Time

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FAMILY COURT OF AUSTRALIA

CRABMAN & CRABMAN

[2013] FamCAFC 104

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders in relation to time spent with the parties’ three children, changeover location and the children’s school – Where the parties made consent orders narrowing the issues for the Federal Magistrate’s determination – Where the parties agreed to an order for equal shared parental responsibility – Where the Federal Magistrate informed the parties at the commencement of the hearing that she would not be considering making an order for equal time, which was the father’s application – Where the reasons for not considering an order for equal time, though not explained in the written reasons for judgment, were sound – Whether the Federal Magistrate complied with the legislative process following the making of an order for equal shared parental responsibility - Where the time ordered for the father to spend with the children was less than he was previously having with two of the three children – Where the time ordered could not be considered significant and substantial time – Where the Federal Magistrate did not follow the required legislative process in considering whether to make orders for substantial and significant time – Where no error has been established in relation to the orders made about changeover and choice of school – appeal allowed in part and applications remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application for the Court to provide the transcript of first instance proceedings – where the transcript was available, was relatively short, and necessary for the father to conduct his case – application allowed and parties provided with copy of the transcript.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358

Bennett and Bennett (1991) FLC 92-191
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
MRR v GR (2010) 240 CLR 461
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW 247
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

Taylor v Barker (2007) 37 Fam LR 461

Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1
WJD v TEK (1998) 72 ALJR 1323

APPELLANT:

Mr Crabman

RESPONDENT:

Ms Crabman

FILE NUMBER:

BRC 10907 of 2011

APPEAL NUMBER:

NA 6 of 2013

DATE DELIVERED:

3 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

28 May 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 January 2013

LOWER COURT MNC:

[2013] FMCAfam 53

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

The application in an appeal filed 8 April 2013 is allowed.
The appeal is allowed in part.
Paragraph 2 of the orders made by Federal Magistrate Turner (as her Honour then was) on 23…

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 CRABMAN & CRABMAN

Details

AGLC: CRABMAN & CRABMAN [2013] FamCAFC 104
Case: [2013] FamCAFC 104
Decision Date

CaseChat Overview and Summary

Mr Crabman appeals against parenting orders made by the Federal Magistrate on 23 January 2013. The father and the respondent mother have three children. The father appeals the parenting orders made by the Federal Magistrate in relation to time spent with the children, the changeover location and the children's school. The father argues that the Federal Magistrate failed to follow the legislative pathway under ss 65DAA and 60CC of the Family Law Act 1975 (Cth). The father also argues that the Federal Magistrate dismissed his application for equal time before hearing oral evidence or submissions, placed excessive weight on certain findings, and failed to order substantial and significant time. The court found that the Federal Magistrate did not follow the required legislative process in considering whether to make orders for substantial and significant time. The court held that the father was not given an opportunity to make submissions, having been told that the Federal Magistrate had already rejected his application in that respect. The court also found that the orders made by the Federal Magistrate did not provide substantial and significant time. The appeal was allowed in part and the matter was remitted for rehearing by a Judge of the Federal Circuit Court. The court held that the orders in relation to the place for changeover and choice of the children’s school and day care did not attract appellate intervention. The court also held that there be no order as to costs as between the parties, and that the parties be granted a costs certificate for the rehearing.

Orders