FAMILY COURT OF AUSTRALIA
| MARVEL & MARVEL | [2010] FamCAFC 101 |
| FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by failing to address s 61DA and s 65DAA of the Family Law Act 1975 (Cth) – Where an order for equal shared parental responsibility was not sought on an interim basis – Where the focus of the hearing before the trial Judge was the question of the time the child should spend with the father and whether it should be supervised – Where the trial Judge was asked to make an interim parenting order – Where there were many disputed factual matters and little uncontested evidence – Goode & Goode (2006) FLC 93-286 considered and applied – The legislation required the trial Judge to consider whether or not the presumption in s 61DA applied – Where the trial Judge did not consider s 61DA – Appealable error established. FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by making findings on factual issues in contention – Where the trial Judge did make some findings on controversial matters –The controversial matters on which the trial Judge made findings did not affect the ultimate exercise of discretion or constitute the ratio decidendi of his decision – Appealable error not established. FAMILY LAW - APPEAL – PARENTING – INTERIM PROCEEDINGS – Whether the trial Judge erred by failing to give proper consideration to the submissions of the Independent Children’s Lawyer – Whether the trial Judge erred in determining the application without the benefit of a psychiatric report – Whether the trial Judge erred in failing to take account of the father’s failure to deal with inappropriate conduct by one of the elder children – Whether the trial Judge erred by failing to give appropriate weight to the failure of the father to properly supervise the children – Appealable error not established. FAMILY LAW - APPEAL – RE-DETERMINATION – Where no submissions were made as to whether the presumption of equal shared parental responsibility should apply – Where the parties’ affidavit material contained many areas of dispute – Where there were few uncontroverted facts – Where the evidence of incidents involving the elder children fall within the definition of “family violence” and would mean that the presumption in s 61DA does not apply – Where in the circumstances also appropriate to rely on s 61DA(3) – Matters in s 60CC(2) and s 60CC(3) considered – Where it is in the child’s best interests that she re-establish her relationship with her father and siblings by regular time spent with them – Where nature of uncontested evidence and undisputed incidents involving the elder children suggest that a structure of time as suggested by the Independent Children’s Lawyer is least likely to expose the child to the risk of inappropriate conduct by her siblings – Interim orders in the best interest of the child are those made by the Judicial Registrar – Application to review… |
Continue reading Marvel & Marvel
Sign in free to access the full text
- AGLC
- Marvel & Marvel [2010] FamCAFC 101
- Case
- [2010] FamCAFC 101
- Decision Date
CaseChat Overview and Summary
The court had to determine if the trial judge erred by failing to address s 61DA of the Family Law Act, which presumes equal shared parental responsibility unless there are substantial reasons to believe it would not be in the child's best interests. The appeal argued that the trial judge did not adequately consider this provision, which was an appealable error. Furthermore, the court examined whether the trial judge made findings on contentious factual issues without establishing appealable error, and if the submissions of the Independent Children’s Lawyer and other considerations were appropriately weighed. The court also scrutinised whether the trial judge's decision was influenced by the lack of a psychiatric report and the father's handling of inappropriate conduct by one of the elder children.
The court found that the trial judge's failure to consider s 61DA constituted an error, leading to the appeal being allowed. The court set aside certain orders made by the trial judge and discharged the stay order made by the Judicial Registrar. The mother's application to review the orders made by the Judicial Registrar was dismissed, and the orders made by the Judicial Registrar were upheld as being in the child's best interests. The court concluded that the best interim arrangements for the child involved regular time with her father and siblings, structured to mitigate the risks posed by the elder children's inappropriate conduct.
Orders
Orders of the court
1.
The appeal is allowed.
2.
Orders 2, 3 and 4 of the orders made by the Honourable Justice Cohen on 12 March 2010 be set aside.
3.
The Order of 23 December 2009 of Judicial Registrar Loughnan staying the operation of his orders made 2 December 2009 is discharged.
4.
The mother’s application to review Order 3 of the orders of Judicial Registrar Loughnan made on 2 December 2009 is dismissed.
5.
No order as to costs.
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
We first consider the statutory imperatives which must be followed when making a parenting order after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act2006 (Cth) (“the amending Act”). It is useful to first refer to the effect of the amending Act which is set out in paragraphs 5 to 9 of Goode & Goode (2006) FLC 93-286 as follows: 5. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) came into effect on 1 July 2006 and was the law that governed his Honour’s decision. The amending Act builds upon the framework of the legislation as it was prior to 1 July 2006. Part VII of the Act applies to children. There are 16 Divisions to Part VII. The significant sections for present purposes follow.6. Orders concerning parental responsibility, who the child is to live with and spend time with, and the communication a child is to have with another person or other persons are all parenting orders. Section 64B(2) provides that a parenting order may deal with one or more of the following:(a) the person or persons with whom a child is to live;(b) the time a child is to spend with another person or other persons;(c) the allocation of parental responsibility for a child;(d) if 2 or more persons are to share parental responsibility for a child — the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;(e) the communication a child is to have with another person or other persons;(f) maintenance of a child;(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:(i) a child to whom the order relates; or(ii) the parties to the proceedings in which the order is made;(h) the process to be used for resolving disputes about the terms or operation of the order;(i) any other aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.Section 64B(3) provides:Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.7. The objects and principles from which the provisions of Part VII are to be applied are set out in s 60B, which provides:(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and(d) parents should agree about the future parenting of their children; and(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:(a) to maintain a connection with that culture; and(b) to have the support, opportunity and encouragement necessary:(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and(ii) to develop a positive appreciation of that culture.8. Section 60CA deals with the best interests of the child and provides that:In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.This provision of the legislation was formerly s 65E and the wording of the section has not changed.9. In determining what is in a child’s best interests, s 60CC provides that, other than in considering whether to make an order by consent, the Court must consider the following matters in determining what is in the child’s best interests:Primary considerations (2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).Additional considerations (3) Additional considerations are:(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b) the nature of the relationship of the child with:(i) each of the child’s parents; and(ii)other persons (including any grandparent or other relative of the child);(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; (d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f) the capacity of:(i) each of the child’s parents; and(ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii) the likely impact any proposed parenting order under this Part will have on that right;(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j) any family violence involving the child or a member of the child’s family;(k) any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or(ii) the making of the order was contested by a person;(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m) any other fact or circumstance that the court thinks is relevant.Section 60CC(4) provides:Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:(a) has taken, or failed to take, the opportunity:(i) to participate in making decisions about major long-term issues in relation to the child; and(ii) to spend time with the child; and(iii) to communicate with the child; and(b) has facilitated, or failed to facilitate, the other parent:(i) participating in making decisions about major long-term issues in relation to the child; and(ii) spending time with the child; and(iii) communicating with the child; and(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.Section 60CC(4A) provides:If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.