FAMILY LAW - APPEAL – CHILDREN – where an interim parenting order for supervised time significantly changed previous interim orders – where concerns were expressed in a single expert report about potential abduction or more serious outcomes for the child – where the trial judge identified the risk – where there was untested but adequate evidence upon which to make the order – where the trial judge had given adequate reasons – appeal dismissed – order for costs in the mother’s favour.
The Appellant father pay the Respondent mother’s costs of and incidental to the appeal, on a party/party basis as agreed or, in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George 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 SYDNEY
Appeal Number: EA 135 of 2013 File Number: SYC 7795 of 2012
Mr George
Appellant
And
Ms George
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Mr George (“the father”) appeals against orders made by Judge Terry on 10 September 2013 in parenting proceedings relating to the child C born August 2005.
As a result of the orders made by her Honour, parenting arrangements that had initially been the subject of agreement, and then confirmed by interim consent orders made on 11 February 2013, were significantly varied.
The orders at the time of the hearing before her Honour provided for C to spend equal time with each of her parents on a week-about basis. The order made on 10 September 2013 suspended those arrangements and provided that the child remain with Ms George (“the mother”) and spend supervised time with the father for two hours each alternate Saturday at a contact service.
BACKGROUND
The parents met in 1997 and were in a relationship from around the end of that year. They married in August 2000 and separated under the one roof in February 2012. The mother left the matrimonial home in March 2012.
From the date of physical separation until the date of the hearing, the child lived…
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
George & George [2013] FamCAFC 182
Case
[2013] FamCAFC 182
Decision Date
CaseChat Overview and Summary
The appeal in the case of George & George was brought by the father, Mr George, against orders made by the trial judge that varied interim parenting orders significantly. The orders in question changed the arrangements for the child C, born August 2005, from an equal time split between the parents to a primary residence with the mother, Ms George, and supervised visits with the father. The appeal was brought against the orders made on 10 September 2013 in the Federal Circuit Court. The Full Court of the Family Court of Australia dismissed the appeal and ordered the father to pay the mother's costs of and incidental to the appeal on a party/party basis as agreed or, in default of agreement, as assessed.
The appeal centred on several legal issues, including whether the trial judge erred in finding that the father posed an unacceptable risk of harm to the child, whether there was adequate evidence to support a change in the parenting arrangements, whether the trial judge gave adequate reasons for her decision, and whether the change in arrangements would be devastating for the child. The Full Court found that the trial judge correctly interpreted the expert report, appropriately balanced the risks and benefits of the proposed change in arrangements, and provided adequate reasons for her decision. The Full Court concluded that the father had not made good any ground of appeal, and the appeal was dismissed. Given the father's lack of success in the appeal and his financial advantage over the mother, the Full Court ordered the father to pay the mother's costs of and incidental to the appeal.