FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – APPLICATION IN AN APPEAL – Where the appellant sought leave to rely on a truncated version of her summary of argument – Where leave was granted – Where the Amended Notice of Appeal is filed jointly by the appellant mother and her partner as the second appellant – Whether the second appellant has standing – Where the Full Court ruled the second appellant has standing on appeal only for particular orders made by the trial judge.
FAMILY LAW – APPEAL – PARENTING – Bias – Apprehended bias – Ostensible bias – Prejudgment – Where direct and even robust questioning does not point to apprehended bias without more – Where evidentiary rulings contrary to the submissions of the appellant do not establish prejudgment – No evidence of partiality – Grounds of appeal asserting bias fail.
FAMILY LAW – APPEAL – PARENTING – EVIDENCE – Whether Division 12A of Part VII of the Family Law Act 1975 (Cth) is constitutionally invalid – Where the appellant submits that s 62G and s 69ZX of the Family Law Act 1975 (Cth) grant the Court an inquisitorial role which is inconsistent with the nature of judicial power and is contrary to the constitutional right to due process – Where provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) give the Court extensive case management powers which are entirely consistent with the exercise of judicial power – Grounds of appeal fail.
FAMILY LAW – APPEAL – PARENTING – Risk of harm – Unacceptable risk of harm to children – Hearsay – Whether statements containing evidence of the second appellant’s alleged assaults should have been admitted into evidence – Where s 69ZV(2) of the Family Law Act 1975 (Cth) applies and the statement of a child is not inadmissible – Where statements of adult witnesses are inadmissible pursuant to provisions of the Evidence Act 1995 (Cth) – Interpretation of s 69ZV of the Family Law Act 1975 (Cth) – Where statements of witnesses were incorrectly admitted into evidence – Where the error does not vitiate the finding of unacceptable risk based on the admissible evidence – Grounds of appeal fail.
FAMILY LAW – APPEAL – PARENTING – Where the appellant’s challenges to findings of fact are not sufficient to establish error – Where the appellant must establish that findings of fact were demonstrably wrong by reference to “incontrovertible facts or uncontested testimony” or were “glaringly improbable” or “contrary to compelling inferences” – Asserted errors, even if established, were not material – Grounds of appeal fail.
FAMILY LAW – APPEAL – PARENTING – Parenting orders – Best interests – Where the mother asserts that s 60CA and s 60CC of the Family Law Act 1975 (Cth) are unconstitutional because they confer on the Court a non-judicial function – Determining a child’s best interests – Where the mandatory list of factors to 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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AGLC
Duarte and Anor & Morse [2019] FamCAFC 93
Case
[2019] FamCAFC 93
Decision Date
CaseChat Overview and Summary
Duarte and Anor & Morse was an appeal heard by the Family Court of Australia concerning parenting and property matters. The appellants sought to challenge various orders made by the trial judge in relation to their children and the division of property between the parties. The respondents defended the orders made by the trial judge and sought costs against the appellants.
The court was required to decide several legal issues. These included whether the second appellant had standing to appeal certain orders, whether the trial judge was biased, whether certain provisions of the Family Law Act 1975 (Cth) were unconstitutional, whether the trial judge erred in admitting certain evidence, whether the trial judge erred in making certain findings of fact, and whether the trial judge erred in making certain parenting and property orders. The court also had to consider the costs to be awarded to the parties.
The court found that the second appellant had standing to appeal only in relation to certain orders concerning the children and the property settlement. The court rejected the appellants' claims of bias against the trial judge and found that the provisions of the Family Law Act in question were not unconstitutional. The court held that the trial judge did not err in admitting certain evidence, and that the findings of fact made by the trial judge were not demonstrably wrong. The court found that the trial judge did not err in making certain parenting and property orders, and amended some of the orders made by the trial judge. The court remitted the property settlement proceedings to the Family Court of Australia for re-trial. The court held that the appellants were to bear the costs of the parenting appeal and pay two-thirds of the respondents' costs of the appeal.
In summary, the appeal was allowed in part, with certain orders made by the trial judge being set aside and others being amended or remitted for re-trial. The appellants were ordered to pay costs to the respondents.
Orders
Orders of the court
1.
The Application in an Appeal filed by the first appellant on 3 August 2018 seeking leave to rely on an extended Summary of Argument is allowed and that Summary of Argument is taken as having been filed in court on 14 August 2018.
2.
The second appellant has standing only in relation to any ground of appeal concerning Order 22 and the property settlement orders made by the trial judge on 1 December 2017.
3.
Pursuant to s 94(2) of the Family Law Act 1975 (Cth) and r 17.02(e) of the Family Law Rules 2004 (Cth) the orders made by the trial judge on 1 December 2017 be amended to include the following order:
The children live with the father.
4.
The appeal is allowed in part.
5.
Orders 25–48 and 51–52 made on 1 December 2017 be set aside.
6.
The property settlement proceedings are remitted to the Family Court of Australia.
7.
The appeal is otherwise dismissed.
8.
The appellants are to pay two-thirds of the respondent’s costs of the appeal, as agreed, or in default of agreement, as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
These paragraphs of his Honour’s reasons need to be read in full:676.The evidence in this case is immense in quantity. The case against making an order which would give the mother parental responsibility or any dominion over the children is overwhelming. Such a conclusion is a tragedy because I am satisfied that the mother has many attributes which the children would benefit from if they are able to have a meaningful relationship with her. I accept she has a great deal of love for the children. I accept that she would provide the children with warmth and tactile interaction. I am satisfied the children love their mother as much as any child could do so. Those conclusions would usually be expected to ground a conclusion that the children would significantly benefit from being able to spend time with and/or live with their mother. However, the evidence of the harm which may be occasioned to the children of spending time with their mother is beyond all reasonable bounds of alternate conclusion. Those harms have been identified under the considerations herein of “unacceptable risk” to the children which I conclude would occur if they have time with or fall under the authority or control of Mr [Tolman]. Additionally, there is the unfortunate conclusion that the mother cannot be relied upon to ensure the children are not further exposed to parental conflict because she has not complied with the orders of the Court. There is also the concern of whether it is possible to frame orders which would so control the mother as to ensure the children were not subjected to a negative emotional environment directed towards their father during any time they might spend with their mother.677.This judgment addresses those conclusions and amply demonstrates the saddest of possible outcomes for any child, let alone these children. The Family Law Act Part VII, s 60CC(2)(a), makes clear that a primary consideration includes the requirement of the Court to consider “the benefit to the child of having a meaningful relationship with both of the child’s parents”. I have regarded the ability of a child being able to have a meaningful relationship with each parent as of great importance. The jurisprudence of this Court I consider conveys the importance which the judges of this Court strive to ensure a relationship between a child and each parent is enabled wherever possible and within the other considerations which the Family Law Act requires the Court to consider.(Emphasis added) In the following paragraphs, the trial judge summarises why he considers Mr Tolman poses a risk to the children and why the mother is not able to protect them from that risk. Thus, the outcome is a “tragedy” and is “sad” because the children will spend limited time with their mother. Such an outcome, however, does not preclude it from being the outcome that is in the best interests of the children. We reject the submission that this passage demonstrates that the trial judge acted with manifest irrationality (Ground 24A). An outcome may be in the best interests of the children but may also be sad.