FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
George & George [2024] FedCFamC1A 15
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- AGLC
- George & George [2024] FedCFamC1A 15
- Case
- [2024] FedCFamC1A 15
- Decision Date
CaseChat Overview and Summary
The appeal in this case involves a challenge by the father, George, against the final parenting orders issued by the Family Court of Australia. The orders in question mandate a change in the children's residence from the father to the mother, accompanied by a six-month moratorium on the father's contact with the children, followed by 12 months of supervised visits. The father argues that the primary judge failed to give sufficient weight to the evidence, and that there were issues of apprehended bias and procedural fairness. The mother, George, and the Independent Children's Lawyer defended the orders, asserting that the father's appeal lacked merit.
The central legal issues before the court were whether the primary judge erred in the manner in which the evidence was considered and whether there were procedural failings in the handling of the case. Specifically, the father argued that the judge did not adequately weigh his evidence, and that there were concerns about the judge's impartiality and the fairness of the process. The mother and the Independent Children's Lawyer countered that the primary judge had appropriately considered all the evidence and that the process was fair and just.
After reviewing the evidence and the arguments presented, the court found no basis to overturn the primary judge's decisions. The court determined that the primary judge had correctly assessed the evidence and provided sufficient reasons for the orders. Additionally, the court found no grounds for the allegations of apprehended bias or procedural unfairness. Consequently, the appeal was dismissed, and the father was ordered to pay the costs of the mother and the Independent Children's Lawyer.
The court's final orders included the dismissal of the father's appeal, with specific directions for the father to pay the mother's appeal costs in the amount of $27,500 and the Independent Children's Lawyer's costs in the amount of $10,000 within 28 days. The form of the order is subject to review and amendment as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
The central legal issues before the court were whether the primary judge erred in the manner in which the evidence was considered and whether there were procedural failings in the handling of the case. Specifically, the father argued that the judge did not adequately weigh his evidence, and that there were concerns about the judge's impartiality and the fairness of the process. The mother and the Independent Children's Lawyer countered that the primary judge had appropriately considered all the evidence and that the process was fair and just.
After reviewing the evidence and the arguments presented, the court found no basis to overturn the primary judge's decisions. The court determined that the primary judge had correctly assessed the evidence and provided sufficient reasons for the orders. Additionally, the court found no grounds for the allegations of apprehended bias or procedural unfairness. Consequently, the appeal was dismissed, and the father was ordered to pay the costs of the mother and the Independent Children's Lawyer.
The court's final orders included the dismissal of the father's appeal, with specific directions for the father to pay the mother's appeal costs in the amount of $27,500 and the Independent Children's Lawyer's costs in the amount of $10,000 within 28 days. The form of the order is subject to review and amendment as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
NAA 282 of 2023
BRC 4444 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR GEORGE
Appellant
AND:
MS GEORGE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, HARPER & BRASCH JJ
DATE OF ORDER:
22 FEBRUARY 2024
THE COURT ORDERS THAT:
1. Appeal NAA 282 of 2023 is dismissed.
2. Within 28 days the appellant father (“the father”) is to pay the respondent mother’s costs of the appeal fixed in the amount of $27,500.
3. Within 28 days the father is to pay the costs of the Independent Children’s Lawyer of the appeal fixed in the amount of $10,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Background
Background to the litigation
In summary, the final orders provided that the children undergo a change of residence from the father to the mother and that there be a six month moratorium on the father’s time followed by 12 months of supervised time each Saturday for up to two hours. The orders then provided for unsupervised time each Saturday between 9.00 am and 5.00 pm for a period of three months and thereafter from after school on Friday until before school on Monday each alternate weekend. It is these orders which the father challenges on appeal.BRIEF BACKGROUND Prior to the commencement of the parties’ relationship the father was involved in a serious accident in 2007 which left him dependent on a mobility aid. The parties commenced living together in or around April 2009 and were married in 2011. They separated on a final basis on 1 March 2020. Very shortly after their separation the father commenced a relationship with Ms T. Ms T and her two children, currently aged 10 and six years, moved into a house owned by the father’s brother with the father in April 2020. From 1 March 2020 until 1 July 2021 the children lived in an equal time arrangement, alternating between each parent’s care every three or four nights. The mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) on 22 April 2020 seeking parenting and property orders. The mother joined seven other parties to the property proceedings, being members of the paternal family and entities owned by the paternal family. The property proceedings remain on foot. The proceedings were transferred to the Family Court of Australia (as it then was) on 11 June 2020 due, in part, to the number of parties involved in the property proceedings. The father collected the children in accordance with the existing parenting arrangements on 1 July 2021, then informed the mother by way of text message on 4 July 2021 that he would not be returning the children to her care due to concerns about their safety and wellbeing. Until the final orders were made the children had no contact with the mother after this date. The final hearing took place over seven days between 3 August 2023 and 11 August 2023. Counsel appeared on behalf of the father on 3, 4, 7 and the morning of 8 August 2023 and the father represented himself, after withdrawing his instructions, for the remainder of 8 August 2023 and the remaining three days of hearing. On 10 August 2023, following the close of evidence and the final submissions of the ICL the primary judge indicated his intention to deliver his judgment ex tempore the following day, 11 August 2023. At this stage neither the mother nor the father had made their closing submissions. The ICL requested that the Court make an order for the children to be brought to the Court building on the following day pending the decision of the Court. Counsel for the mother then made closing submissions and the father elected to make his submissions on 11 August 2023. The primary judge made orders, as requested by the ICL, that the father bring the children to the Court precinct the following morning pending delivery of judgment.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ground 4 fails.CONCLUSION For the foregoing reasons the appeal should be dismissed.COSTS The mother sought costs in the event the appeal failed. Her schedule of costs claimed $48,162.20 on a party/party basis or $61,017.97 on an indemnity basis. No submission was put justifying an award of costs on an indemnity basis. In our view, the claim for party/party costs includes items which should not be allowed. However, we are also satisfied there are circumstances justifying an award of costs, particularly the fact that the father has been wholly unsuccessful. In the exercise of discretion we will order the father to pay the mother’s costs fixed in the amount of $27,500. The ICL claimed costs of $12,366.09. We consider it appropriate for the father to pay the ICL’s costs fixed in the amount of $10,000.
Ratio Decidendi
Legal Principle Established
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