Granville & Blakeslee - [2017] FamCAFC 162

FAMILY COURT OF AUSTRALIA

GRANVILLE & BLAKESLEE

[2017] FamCAFC 162

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Where both parties’ minutes of orders sought an order for equal shared parental responsibility without qualification – Where the primary judge made orders giving the mother responsibility for decision‑making in relation to medical and educational issues – Error conceded by mother – Appeal allowed on this point – Re-exercise – Order for equal shared parental responsibility made.

FAMILY LAW – APPEAL – CHILDREN – Consideration of s 65DAA – No error in his Honour’s approach – Failure to make orders in relation to “special days” – Where the error is not productive of any substantial miscarriage of justice in the circumstances – Not sufficient to warrant appellate intervention.

FAMILY LAW – APPEAL – PROPERTY – Assessment of contributions – Where the father asserted that the primary judge placed insufficient weight on his contributions –Where the father’s father was not called to give evidence as to the intention of funds gifted –Where the Court is satisfied that the primary judge regarded the funds as being a contribution on the father’s behalf – Where it was undisputed that the mother owned a property and savings at the start of the relationship and made substantial post‑separation contributions – Where the father’s contributions were correctly described in this context – No appealable error.

FAMILY LAW – APPEAL – PROPERTY – Consideration of s 75(2) factors – Where the father asserted that the primary judge failed to make findings of fact as to income and earning capacity – Where his Honour’s findings were sufficient – Where it was undisputed that the mother would continue to be the primary financial support for the children – Whether the primary judge erred in his treatment of the mother’s superannuation fund in the United Kingdom – Where the United Kingdom fund could not be treated as property – Where the primary judge did not consider the s 75(2) factors in relation to the superannuation pool – Where the primary judge’s consideration of the non‑superannuation property interests obviously proceeded on the basis of superannuation pool assessment – No appealable error.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 65DAC, 75(2), 79, 90MC, 90MD, 90MT, 94

Byrnes v Kendle (2011) 243 CLR 253
Dickons v Dickons (2014) 50 Fam LR 244
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kessey and Kessey (1994) FLC 92-495
Lane & Nichols (2016) FLC 93-750
Lovine & Connor and Anor (2012) FLC 93-515
Rice and Asplund (1979) FLC 90-725

APPELLANT:

Mr Granville

RESPONDENT:

Ms Blakeslee

FILE NUMBER:

CAC

751

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

16 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Kent JJ

HEARING DATE:

21 June 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 May 2016

LOWER COURT MNC:

[2016] FamCA…

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: Granville & Blakeslee [2017] FamCAFC 162
Case: [2017] FamCAFC 162
Decision Date: 16 August 2017

CaseChat Overview and Summary

The appeal was brought by the mother against a decision made by Faulks DCJ concerning the parental arrangements for her three children. The dispute centred on the allocation of shared parental responsibility and the specific arrangements for the children’s time-sharing. The case was heard in the Family Court of Australia.

The central legal issue before the court was whether the decision made by Faulks DCJ on 19 May 2016 regarding the shared parental responsibility of the parents was correct. Specifically, the court had to determine if the parents should have equal shared parental responsibility and if the original order should be altered to reflect this. The mother argued for changes to the original order, while the father maintained the existing arrangements.

The court considered the best interests of the children as the paramount consideration. It found that the original order did not adequately reflect the parents' equal capacity to share parental responsibility. The court emphasised the importance of both parents being involved in the children’s lives and concluded that equal shared parental responsibility was in the children's best interests. Consequently, the court allowed the appeal in part, setting aside the original order and substituting it with one that granted equal shared parental responsibility to both parents. The remainder of the appeal was dismissed. The court also directed the parties to file written submissions regarding the costs of the appeal.

Orders

Orders of the court

The appeal against Order 1 of the orders made by Faulks DCJ on 19 May 2016 be allowed, that order be set aside and in its stead order:

That the parents have equal shared parental responsibility for the children C born … 2007, B born … 2008, and D born … 2011 (“the children”).

The appeal otherwise be dismissed.

The respondent file and serve written submissions (not exceeding 10 pages) dealing with the issue of the costs of the appeal within 14 days of these orders.

The appellant file and serve written submissions in response within 14 days of service of the submissions referred to in Order 3 being received (not exceeding 10 pages).

The respondent file and serve any submissions in reply within 7 days of the submissions referred to in Order 4 (not exceeding five pages).

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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