FAMILY COURT OF AUSTRALIA
| JASAPAS & JOHNS (NO. 2) | [2020] FamCAFC 203 |
| FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from the second set of final parenting orders made in these proceedings – Where the primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months – Where the mother’s case was based on allegations that the father physically and sexually abused the children – Where the primary judge found that the father presented no unacceptable risk to the children – Where the primary judge found the mother presented an unacceptable risk of exposing the children to emotional harm – Where the primary judge found the mother is unable to let go of her beliefs that the father has physically and sexually abused the children – Where the expert evidence supported the primary judge’s findings – Where the mother contends the primary judge erred in failing to consider the rule in Rice and Asplund (1979) FLC 90-725 – Where the rule in Rice and Asplund (1979) FLC 90-725 was not raised by any party until the mother’s closing submissions – Where it could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders – Apprehended bias – Where the primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father – Where that change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor – Where such correspondence was appropriate given the exceptional circumstances of the case – Where, in any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise – Where the remainder of the mother’s grounds of appeal have no merit – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) Pt VII, s 68L |
| Ahmad and Ahmad (1979) FLC 90-633; [1979] FamCA 20 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Argos Pty Ltd v Minister for the Environment and Sustainable Development (2014) 254 CLR 394; [2014] HCA 50 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Charisteas & Charisteas and Ors (2020) FLC 93-971; [2020] FamCAFC 162 De Winter and De Winter (1979) FLC 90-605 Dixon v Commonwealth (1981) 61 ALR 173 Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Ex parte Lewin; Re Ward [1964] NSWR 446 Garrihy v Wyatt (1975) 10 SASR 476 Genesalio & Genesalio [2020] FamCAFC 113 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Helbig & Rowe and Ors(No. 2) (2014) FLC 93-625; [2014] FamCAFC 241 Hillier & Wootton (2013) FLC 93-526; [2013] FamCAFC 11 F and N (1987) FLC 91-813; [1987] FamCA 40 Johns & Jasapas [2016]… |
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Details
- AGLC
- Jasapas & Johns (No 2) [2020] FamCAFC 203
- Case
- [2020] FamCAFC 203
- Decision Date
CaseChat Overview and Summary
The mother appealed against the final parenting orders which were made in these proceedings. The primary judge’s orders provided for the children to be transferred from the mother’s care to live with the father and spend supervised time with the mother following a moratorium of six months. The mother’s case was based on allegations that the father physically and sexually abused the children. The primary judge found that the father presented no unacceptable risk to the children, but that the mother presented an unacceptable risk of exposing the children to emotional harm. The primary judge found that the mother is unable to let go of her beliefs that the father has physically and sexually abused the children. The expert evidence supported the primary judge’s findings.
The mother contended that the primary judge erred in failing to consider the rule in Rice and Asplund (1979) FLC 90-725. The rule was not raised by any party until the mother’s closing submissions. It could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders. The mother also contended that the primary judge was biased. The primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father. That change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor. Such correspondence was appropriate given the exceptional circumstances of the case. In any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise. The remainder of the mother’s grounds of appeal have no merit.
The appeal was dismissed. There be no order as to costs.
The mother contended that the primary judge erred in failing to consider the rule in Rice and Asplund (1979) FLC 90-725. The rule was not raised by any party until the mother’s closing submissions. It could not sensibly be suggested that there had not been a sufficient or material change in circumstances as to warrant reconsideration of parenting orders. The mother also contended that the primary judge was biased. The primary judge changed his time of delivery of judgment to a time when the children were spending supervised time with the father. That change was consequent upon correspondence received from the ICL setting out concerns raised by the contact supervisor. Such correspondence was appropriate given the exceptional circumstances of the case. In any event, the primary judge had already decided the case such that no apprehension of bias as to the question to be decided could arise. The remainder of the mother’s grounds of appeal have no merit.
The appeal was dismissed. There be no order as to costs.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
There be no order as to costs.
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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