Finch & Shibo (No 3) - [2016] FamCAFC 109

FAMILY COURT OF AUSTRALIA

FINCH & SHIBO (NO. 3)

[2016] FamCAFC 109

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – With whom a child spends time – The trial judge did not err in ordering that the mother have sole parental responsibility given the expert evidence about the father’s behaviour – The trial judge did not err in ordering that the father only spend time with the child during school holidays; that the father’s time with the child be cancelled if he fails to collect the child within 30 minutes of the designated time; or that the mother have liberty to apply if the father misses two consecutive visits – Appeal dismissed – No order as to costs.

Family Law Act 1975 (Cth) – s 65DAA

APPELLANT:

Mr Finch

RESPONDENT:

Ms Shibo

INDEPENDENT CHILDREN’S LAWYER:

Bruce Scott

FILE NUMBER:

BRC

2788

2009

APPEAL NUMBER:

NA
NA

56
85

of
of

2015
2015

DATE DELIVERED:

24 June 2016

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ainslie-Wallace & Ryan JJ

HEARING DATE:

7 June 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 August 2015

16 November 2015

LOWER COURT MNC:

[2015] FamCA 690
[2015] FamCA 1059

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Mr White

SOLICITOR FOR THE RESPONDENT:

Suncoast Community Legal Centre

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Shoebridge

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Parker Family Law

Orders

The appeal NA 56 of 2015 be dismissed.
The appeal NA 85 of 2015 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Finch & Shibo (No. 3) 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 BRISBANE

Appeal Number: NA 56 & 85 of 2015
File Number: BRC 2788 of 2009

Mr Finch

Appellant

And

Ms Shibo

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Finch (“the father”) has appealed orders of Forrest J made on 21 August 2015. Ms Shibo (“the mother”) and the Independent Children’s Lawyer seek that the appeal be dismissed.
The primary complaints relate to parental responsibility and the time the father is permitted to spend with K, the parties’ eight-year-old daughter (“the child”).

Background

In November 2011, the father and mother consented to orders about the child. These provided for equal shared parental responsibility, and for the child to live with the mother and spend alternate weekends with the father.
Problems arose soon after the orders were made, as the father wanted to change the specified place of handover. The proposed change was based on issues associated with the father’s mental health.
In March 2013, an order was made restraining the father from commencing further proceedings without leave. He persisted in making applications until he was eventually given leave…

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 Finch & Shibo (No 3)

Details

AGLC: Finch & Shibo (No 3) [2016] FamCAFC 109
Case: [2016] FamCAFC 109
Decision Date: 24 June 2016

CaseChat Overview and Summary

Finch & Shibo (No 3) was a case heard in the Family Court of Australia, where Finch, the father, and Shibo, the mother, were in dispute over the custody and care of their children. The appeal centred around the original decision which was made in relation to the children's residency and the allocation of parenting time. The Full Court was asked to review the primary judge's findings and to determine whether they were correct and whether the orders made were in the best interests of the children.

The central legal issues before the court involved the interpretation of the Family Law Act 1975, particularly sections concerning the best interests of the child and the principle of equal shared parental responsibility. The court had to assess whether the primary judge had correctly applied the statutory criteria and whether the orders made reflected a proper consideration of the children's welfare. Additionally, the court needed to determine if there was any error in the exercise of discretion by the primary judge.

In delivering the judgment, the court found that the primary judge had indeed applied the relevant statutory principles correctly. The court was satisfied that the primary judge had thoroughly considered the evidence and had made findings that were supported by the material before them. The Full Court held that the original decision was not flawed and that the orders made were appropriate given the circumstances. Consequently, the appeals were dismissed, and there was no order as to costs.

Orders

Orders of the court

The appeal NA 56 of 2015 be dismissed.

The appeal NA 85 of 2015 be dismissed.

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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