GONG & WEI - [2017] FamCAFC 55

FAMILY COURT OF AUSTRALIA

GONG & WEI

[2017] FamCAFC 55

FAMILY LAW – APPEAL – CHILDREN – Interim parenting orders – Where the mother appeals against interim parenting orders which provide for equal shared parental responsibility, remove the previously ordered supervision of the children’s time with the father and increase that time – Where the primary judge did not err in her consideration of family violence allegations – Where the primary judge’s obligation to consider s 60CG and s 61DA of the Family Law Act 1975 (Cth) was met – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the mother seeks to adduce the Children and Parents Issues Assessment of the Family Consultant provided subsequent to her Honour’s Orders – Where the further evidence would not have produced a different result from that under appeal – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Mother ordered to pay the father’s costs of the appeal – Where the mother seeks to stay any costs orders made against her pending determination of the property proceedings – Where there were no grounds for making such an order – No order made.

Family Law Act 1975 (Cth) ss 60CG, 61DA

CDJ v VAJ (1998) 197 CLR 172

Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Salah & Salah (2016) FLC 93-713
De Winter & De Winter (1979) FLC 90-605

APPELLANT:

Ms Gong

RESPONDENT:

Mr Wei

FILE NUMBER:

SYC

5655

2015

APPEAL NUMBER:

177

2016

DATE DELIVERED:

4 April 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ainslie-Wallace & Forrest JJ

HEARING DATE:

9 February 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 September 2016

LOWER COURT MNC:

[2016] FamCA 830

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC and Mr Dura

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

The appeal be dismissed.
The Application in an Appeal filed 21 December 2016 be dismissed.
The appellant mother pay the costs of the respondent father of and incidental to the appeal as agreed or, failing agreement, to be assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gong & Wei has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 177 of 2016
File Number: SYC5655 of 2015

Ms Gong

Appellant

and

Mr Wei

Respondent

REASONS FOR…

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

Case: [2017] FamCAFC 55
Decision Date: 4 April 2017

CaseChat Overview and Summary

The case of Gong & Wei involved an appeal by the mother against interim parenting orders that were made by the Family Court of Australia. The orders altered the existing arrangements for the children’s time with their father, providing for equal shared parental responsibility, removing the previously ordered supervision of the children’s time with the father, and increasing the time the children would spend with him. The mother’s appeal contested these changes, asserting that the primary judge had erred in her consideration of the family violence allegations and in her application of relevant statutory provisions.

The legal issues before the court included whether the primary judge had erred in her consideration of the allegations of family violence and whether the statutory obligations under sections 60CG and 61DA of the Family Law Act 1975 (Cth) were properly considered. The court needed to determine if the further evidence provided by the Family Consultant, which was submitted post the primary judge's orders, would have altered the outcome of the appeal. Additionally, the court had to consider the costs of the appeal and whether the mother should be required to pay the father's costs.

The court held that the primary judge had not erred in her consideration of the family violence allegations, and her application of the statutory provisions was appropriate. The court found that the further evidence from the Family Consultant, though submitted post the primary judge's orders, would not have produced a different result. Consequently, the appeal was dismissed, the application to adduce further evidence was also dismissed, and the mother was ordered to pay the father’s costs of the appeal. The mother’s application to stay any costs orders pending the determination of the property proceedings was denied as there were no grounds for such an order.

Orders

Orders of the court

The appeal be dismissed.

The Application in an Appeal filed 21 December 2016 be dismissed.

The appellant mother pay the costs of the respondent father of and incidental to the appeal as agreed or, failing agreement, to be 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

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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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