Guinness & Guinness - [2008] FamCAFC 10

FAMILY COURT OF AUSTRALIA

GUINNESS & GUINNESS

[2008] FamCAFC 10

FAMILY LAW - APPEAL – From decision of Family Court judge – whether trial Judge erred by failing to take into account provisions of the Family Law Act 1975 yet to commence – issue determined in Vanderhum and Doriemus (2007) FLC 93-324

FAMILY LAW - APPEAL – delay in delivery of judgment – whether unsafe to rely on findings of fact – trial Judge thoroughly reviewed the evidence and provided a thoughtful analysis

FAMILY LAW - APPEAL – where trial Judge ordered that supervised time with the child be subject to conditions – whether conditions open to trial Judge – appellant had himself proposed conditions – conditions otherwise open on the evidence – expert evidence – appeal dismissed

Family Law Act 1975, s 61C, s 94(2)
Family Law Amendment (Shared Parental Responsibility) Act 2006

CDJ v VAJ (1998-1999) 197 CLR 172; (1998) FLC 92-828
Harris v Caladine (1991) 172 CLR 84; (1991) FLC 92-217
McCrossen and McCrossen (2006) FLC 93-283
Monie v The Commonwealth (2005) 63 NSWLR 729
R v Maxwell (1998) 217 ALR 452
Vanderhum and Doriemus (2007) FLC 93-324
Western Australia v Ward (2002) 213 CLR 1

APPELLANT:

Mr Guinness

RESPONDENT:

Ms Guinness

FILE NUMBER:

SYF

3422

2002

APPEAL NUMBER:

2007

DATE DELIVERED:

7 February 2008

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Boland and Thackray JJ

HEARING DATE:

7 December 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 January 2007

LOWER COURT MNC:

[2007] FamCA 1

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr G Johnston

SOLICITOR FOR THE APPELLANT:

Bizannes & Associates

COUNSEL FOR THE RESPONDENT:

Ms A Rees

SOLICITOR FOR THE RESPONDENT:

Anne Marie Proctor & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms S Christie

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Turner Whelan

Orders

That the appeal be dismissed.
That the appellant, [Mr Guinness], pay the costs of the appeal of the respondent, [Ms Guinness], and of the Independent Children’s Lawyer, to be assessed if not agreed.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 15 of 2007
File Number: SYF 3422 of 2002

[Mr Guinness]

Appellant

And

[Ms Guinness]

Respondent

REASONS FOR JUDGMENT

We had before us an appeal by the husband, [Mr Guinness], against parenting orders made by Cohen J. A cross-appeal by the wife, [Ms Guinness], was settled, as were appeals by both parties against property settlement orders.
The appeal arose from a trial conducted in October 2005. The parenting orders were not made until 30 June 2006, which was the day before the Family Law Amendment (Shared Parental Responsibility) Act2006 came into effect. No reasons for decision were given at the time the orders were made. These were ultimately delivered on 5 January 2007.
The proceedings concerned two children, L and E, who were aged 6 and 8 years at the time of trial. Cohen J ordered that they should reside with…

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 Guinness & Guinness

Details

AGLC: Guinness & Guinness [2008] FamCAFC 10
Case: [2008] FamCAFC 10
Decision Date: 7 February 2008

CaseChat Overview and Summary

In the appeal, the husband challenged the findings of fact and the orders made by the primary judge in a parenting matter. The case before the court involved two young children, and the husband sought to overturn the decision on several grounds, including the delay in the delivery of judgment and the failure to consider certain evidence. The appeal was heard in the Family Court of Australia, where the appellate judges reviewed the primary judge’s findings and orders.

The central legal issues that the court had to decide were whether the trial judge had erred by not considering provisions of the Family Law Act 1975 that had not yet commenced, whether the delay in delivering the judgment made it unsafe to rely on the findings of fact, and whether the conditions set for supervised time with the child were properly imposed. The court also needed to determine if the trial judge had correctly considered all relevant evidence, including expert testimony, in making his decisions.

In addressing these issues, the court found that the trial judge had not erred by not considering provisions of the Family Law Act that had not yet commenced, as this had already been determined in previous cases. Regarding the delay in delivering the judgment, the court held that while the delay was regrettable, the trial judge had thoroughly reviewed the evidence and provided a thoughtful analysis of the impact of the proposed orders on the children's welfare. The appellate court applied the strictest scrutiny to the reasons for judgment due to the delay but found that the trial judge's analysis was sound. Finally, concerning the conditions for supervised time with the child, the court found that the conditions were appropriate given the evidence presented, including the expert testimony, and that the husband himself had proposed similar conditions.

The appeal was ultimately dismissed, and the orders made by the primary judge were upheld. The court's decision affirmed the thoroughness and rationality of the trial judge's analysis despite the delay in delivering the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By this Ground the husband asserted:Having regard to the delay in delivering reasons for judgment it is unsafe to rely upon the findings of fact supporting the Orders and in particular in relation to credit In support of this ground, counsel for the husband drew attention to the strong adverse findings his Honour made concerning the credit of both the husband and the wife and the husband’s girlfriend. Counsel noted that in making these findings, his Honour had relied, in part, upon his observations of the behaviour and demeanour of the husband during the trial. It was submitted that, having taken 14 months to deliver his reasons, his Honour “lost the advantage normally afforded to a trial Judge by his observations of the parties”. Counsel for the husband acknowledged that delay in itself “may not be appealable” but submitted that in cases involving such inordinate delay the appellate court should apply the “strictest of scrutiny” to the reasons for judgment. It was further submitted that: …his Honour’s timing in the making of the orders and the subsequent delay in delivering reasons for making those orders gives respectability to the proposition that his Honour did not carefully consider the orders made because his Honour had “been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make”. (footnotes omitted, Appellant’s Summary of Argument p 4) In McCrossen and McCrossen (2006) FLC 93-283, the Full Court reviewed the authorities concerning the approach to be taken by an appellate court when dealing with a judgment delivered long after the conclusion of the trial. We do not propose repeating all that was said there, but we accept that an appellate court must apply the strictest of scrutiny in dealing with a judgment which “may have been affected by the inevitably adverse consequences of delay”: R v Maxwell (1998) 217 ALR 452. We also must keep in mind, as was said in Monie v The Commonwealth (2005) 63 NSWLR 729 at [43], that:…long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning. The delay in delivery of orders and the even greater delay in delivery of reasons in this matter was most unfortunate, especially given that the proceedings involved the welfare of two young children. That said, Cohen J ultimately delivered a lengthy judgment, in which he made a thorough review of the evidence and provided a thoughtful analysis of the likely impact of the proposed orders on the welfare of the children.

Ratio Decidendi

Legal Principle Established

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