FAMILY COURT OF AUSTRALIA
| KORBAN & KORBAN | [2009] FamCAFC 143 |
| FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred in refusing to make an order for equal time – Whether the trial Judge had given insufficient weight to recent events – Whether the trial Judge had given inappropriate weight to past events – No error in the trial Judge’s consideration of the effect of the parties’ inability to communicate and impact on child – Where the trial Judge thoroughly considered the report and evidence of the Family Consultant – Where the trial Judge gave weight to the child’s satisfactory living arrangements – Where the trial Judge took the child’s views and ability to adapt to a less than equal time regime into account – No error in the weight given to that consideration – Where the trial Judge recognised the mother’s concerted and appropriate diligence to her rehabilitation – Where the role of the trial Judge was to assess what was in the best interests of the child – Where the trial Judge carefully evaluated all evidence – Where orders made were open to the trial Judge in exercise of discretion – No error. FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the trial Judge erred by not following guidelines enunciated in paragraph 82(g) of Goode & Goode (2006) FLC 93-286 – Consideration of Goode – Paragraph 82 of Goode does not contain binding principles departure from which will constitute appealable error – Paragraph 82 contains guidelines designed to assist in hearing interim parenting proceedings – Failure to follow the guidelines in paragraph 82 does not constitute appealable error provided all relevant provision of Part VII of the Family Law Act 1975 (Cth) are addressed – Interpretation of sub-paragraph 82(g) of Goode considered – The consideration under s 65DAA of equal time is a positive one to ascertain whether equal time is in the child’s best interests – Where the trial Judge correctly applied the legislation – No appealable error. FAMILY LAW - APPEAL – Appeal dismissed. FAMILY LAW - COSTS – COST OF APPEAL – Where appeal against a discretionary judgment – Mother wholly unsuccessful – Where circumstances warrant a departure from s 117(1) – Mother to pay father’s cost of and incidental to the appeal. |
| Family Law Act 1975 (Cth) – s 60B, s 60CC, s 61DA, s 65DAA, s 117 Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| AMS v AIF (1999) 199 CLR 160 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 McCall & Clark [2009] FamCAFC 92 Norbis v Norbis (1986) 161 CLR 513 Sealey & Archer [2008] FamCAFC 142 Taylor & Barker (2007) FLC 93-345 |
| APPELLANT: | Ms Korban |
| RESPONDENT: | Mr Korban |
| FILE NUMBER: | SYF | 4503 | of | 2004 |
| APPEAL NUMBER: | EA | 56 | of | 2008 |
DATE DELIVERED: | 13 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland, Thackray… |
Continue reading Korban & Korban
Sign in free to access the full text
- AGLC
- Korban & Korban [2009] FamCAFC 143
- Case
- [2009] FamCAFC 143
- Decision Date
CaseChat Overview and Summary
The court found that the trial judge had not erred in their consideration of the matter. The trial judge had thoroughly considered the report and evidence of the family consultant, the child's satisfactory living arrangements, and the child's views and ability to adapt to a less than equal time regime. The judge had also given appropriate weight to the mother's rehabilitation efforts and recognised the importance of the child's best interests. The court held that the trial judge had carefully evaluated all evidence and exercised their discretion appropriately in making the orders. The guidelines enunciated in paragraph 82(g) of Goode were not binding, and the failure to follow them did not constitute appealable error.
The appeal was dismissed, and the mother was ordered to pay the father's costs of and incidental to the appeal. The court found that the mother was wholly unsuccessful in her appeal, and the circumstances warranted a departure from the usual cost-sharing provisions. The court ordered the mother to pay the father's costs as agreed, or failing agreement, as assessed under Chapter 19 of the Family Law Rules 2004.
Orders
Orders of the court
1.
That the appeal is dismissed.
2.
That the mother pay the father’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
At paragraph 82 of Goode the Full Court said, in paragraphs (e) to (k): (e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h) if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable; (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child. (our emphasis) At paragraph 5 of her reasons the trial Judge set out, in summary form, the provisions of the Act dealing with equal shared parental responsibility, and the obligations imposed by s 61DA and s 65DAA. Her Honour said: … the Act imposes a presumption about best interests, which is referable to parental decision making, and that may have consequences for decisions about the child’s time. The presumption is that it would be in the child’s best interests for the parents to have equal shared parental responsibility. If it is not excluded on reasonable grounds for believing a parent has engaged in child abuse or family violence and it not rebutted by reason of being contrary to the child’s best interests, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable for the child to spend equal time with each parent. If so, that order is to be made. If not, there is an obligation to consider if it would be in the best interests of the child and reasonably practicable to spend substantial and significant time with each parent and if so to make that order.