D & F - [2002] FamCA 420

[2002] FamCA 420

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA46 of 2001
File No. BR6845 of 1996

IN THE MATTER OF:

Appellant/Mother

- and -

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:                 Ellis, Finn and Coleman JJ.
HEARD:                   13th day of May 2002
JUDGMENT:          21st day of June 2002

APPEARANCES: Ms Hogan of counsel, instructed by Emerson Black,
Solicitors, appeared on behalf of the appellant mother.

Mr Smith of counsel, instructed by Kelly & Agerholm, Solicitors, appeared on behalf of the respondent father.
Mr Waterman of counsel, instructed by Legal Aid Queensland,
appeared on behalf of the child’s representative.

Catchwords: Child – Residence – Best interests of child – Whether trial Judge erred in changing long-standing status quo – Delay in delivering judgment.

Application to adduce further evidence – Applicable principles.

INTRODUCTION

This is an appeal by the mother against the orders made by Lindenmayer J. on

29 August 2001 in proceedings between her and the father for parenting orders in relation to their child, S, born in August 1992. The effect of those orders was to change the residence of S from the mother to the father. However, on 20 September 2001, the trial Judge made further orders staying the operation of paragraphs 1 to 3 and 5 to 7 of the order of 29 August 2001 pending the resolution of the mother’s appeal.

The actual order made by the trial Judge are:-

“1.The child S, born … August, 1992 is to live with the father, who shall have sole responsibility for the day to day care, welfare and development of the child subject, however, to the condition that unless otherwise agreed between the parties and approved by the Child’s Representative, or ordered by the Court, the father shall ensure and facilitate the child’s continued attendance at the Christian School, Brisbane, until at least the end of the 2001 school year.
2.Unless the operation of these orders is sooner stayed, or this Court in the meantime otherwise orders, the change-over of the residence of the child from the mother to the father is to take place on 20 September, 2001.
3.In order to facilitate the change-over of residence, the mother is to produce the child for that purpose at a time and place to be nominated in advance by the Child’s Representative, and the change-over shall be monitored by a suitable mental health professional nominated by the Child’s Representative.
4.Until the date of the change-over of the child’s residence, the mother, and all persons acting or purporting to act on her behalf, (other than the approved mental health professional referred to below) are hereby restrained from informing the child of or discussing with him the proposed change-over except pursuant to and in accordance with the written advice of a qualified mental health professional approved in advance by the Child’s Representative, and in such case a copy of that written advice shall be provided to…

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: D & F [2002] FamCA 420
Case: [2002] FamCA 420
Decision Date: 21 June 2002

CaseChat Overview and Summary

The Full Court of the Family Court of Australia considered an appeal concerning the residence of a child. The dispute arose from a judgment of a single judge of the Family Court, which altered a long-standing residence arrangement for the child. The appeal was brought by one of the parents against this decision.

The primary legal issues before the Full Court were whether the trial judge had erred in changing the established residence arrangements for the child, and whether the delay in the delivery of the trial judge's judgment constituted a ground for appeal. The Court was required to assess the application of the paramountcy principle, namely the best interests of the child, in the context of an existing, stable living arrangement.

The Full Court found that the trial judge had failed to adequately consider the impact of disrupting the child's long-standing residence arrangements. The Court emphasised that while the best interests of the child are paramount, this principle requires a careful balancing of various factors, including the importance of stability and continuity in a child's life. The delay in judgment was not, in itself, a sufficient ground to overturn the substantive orders, but it contributed to the overall assessment of the trial judge's conduct. The Court allowed the appeal, setting aside the orders of the trial judge and remitting the matter for redetermination.

Orders