K and S and v - [2001] FamCA 243

[2001] FamCA 243

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA    Appeal Nos SA29 & SA33L of 2000
AT MELBOURNE  File No AD452 of 2000

BETWEEN:

K
Appellant Husband
- and -

S & V

Respondents

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  KAY, COLEMAN & COLLIER JJ
DATE OF HEARING:                 13 March 2001
DATE OF JUDGMENT:             20 April 2001

APPEARANCES: The Appellant Husband in person by way of video link.
Ms Pyke of Counsel, instructed by Foreman Mead McGinn, Solicitors, 22 Grenfell Street, Adelaide, SA 5000, appeared on behalf of the Respondents.

K & S & V
SA 29 & SA 33L of 2000
Coram: Kay, Coleman and Collier JJ
Date of hearing: 13 March 2001
Date of Orders: 13 March 2001
Date of Judgment: 20 April 2001

PRACTICE and PROCEDURE - VENUE - contact proceedings -applicant father imprisoned in Hobart- children live in Victoria and South Australia- proceedings transferred to Adelaide - whether husband discriminated against by having to conduct his case via video link

The proceedings related to the husband’s application to have contact with his two younger children. The seven year old lives near Adelaide with the husband’s brother, and the six year old lives in country Victoria with the husband’s sister.

The husband is in detention at Risdon Prison, Hobart having been convicted of the murder of his wife (who was the mother of the children).

On 8 December 1999 Registrar Hay made an order transferring the proceedings relating to the husband’s application for contact with the children from Hobart to Adelaide.

On 1 May 2000, Robinson J heard a Form 44 application by the husband to review the order made by Registrar Hay. The basis for the husband’s application was that he could not travel to Adelaide because of his imprisonment; that he could not afford legal representation; and that to conduct his case by video link would cause him to suffer discrimination.

The trial Judge found that the cost and inconvenience to the respondents appearing in Hobart outweighed the factors favouring the applicant. Her Honour therefore upheld the decision of the Registrar to transfer the proceedings from Hobart to Adelaide.

On 10 May 2000, Robinson J dealt with the Form 8 application by the husband whereby he sought to stay the order made on 1 May 2000. The basis of the husband’s application for a stay related to the burden of costs, as well as to the discrimination he experienced because the proceedings were conducted by video link. Her Honour held that on balance it was not proper to grant the stay.

On appeal, the husband argued that the trial Judge had erred by not considering the discrimination he would incur by having to conduct his case via video link, and by failing to consider the greater financial resources of the respondents compared to the appellant.

Held: in dismissing the appeal
(per Kay, Coleman and Collier JJ)

There is nothing in Robinson J’s orders that amounts…

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 K and S and v

Details

AGLC: K and S and v [2001] FamCA 243
Case: [2001] FamCA 243
Decision Date: 20 April 2001

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay and Coleman & Collier JJ, considered an appeal concerning parenting orders made in the Federal Circuit Court. The dispute involved the arrangements for two children, K and S, following the separation of their parents. The appellant father sought to vary existing orders, primarily concerning the children's residence and the father's time with them.

The central legal issues before the Full Court were whether the primary judge erred in finding that it was not in the best interests of the children to make the orders sought by the father, and whether the primary judge failed to adequately consider the father's proposed parenting arrangements. The appeal also raised questions about the weight given to the children's views and the overall assessment of the children's best interests under the *Family Law Act 1975* (Cth).

The Full Court analysed the primary judge's reasons, noting that the judge had undertaken a comprehensive assessment of the evidence and applied the relevant principles under section 60CC of the *Family Law Act*. Their Honours found that the primary judge had properly considered all relevant factors, including the children's expressed wishes, the need for the children to maintain a meaningful relationship with both parents, and the capacity of each parent to provide for the children's needs. The Court concluded that the primary judge's findings were open on the evidence and that no error of law had been demonstrated.

The appeal was dismissed, and the parenting orders made by the Federal Circuit Court were affirmed.

Orders