APPEAL – CHILDREN - PARENTING ORDERS - Proceedings heard prior to commencement of Family Law (Shared Parental Responsibility) Act 2006 (Cth) - Judgment delivered and orders made after commencement of Act - Whether trial Judge failed to provide natural justice by not affording husband opportunity to make submissions as to effect of amending Act on his application – Trial Judge made order in chambers inviting written submissions as to impact of amending Act – Wide publicity in respect of changes to Act –Circulation of Practice Direction No.1 of 2006 - No breach of rules of natural justice – Trial Judge afforded husband appropriate opportunity to make submissions – No merit in this ground.
Whether trial Judge misapprehended nature of husband’s application and whether this permeated and affected whole judgment – Trial Judge prima facie appears to have misunderstood nature of husband’s application before her – That misapprehension vitiated trial Judge’s discretion in assessing parties’ competing proposals – Appeal must succeed on this ground.
Whether trial Judge erred in her findings in respect of family violence – Trial Judge’s findings not open on the evidence.
Equal shared parental responsibility - Whether trial Judge erred in her findings in respect of the rebuttal of the presumption of equal shared parental responsibility - Section 61DA – Not clear whether trial Judge either declined to apply presumption or found presumption rebutted – Finding presumption did not apply because of family violence not open on the evidence.
Whether trial Judge denied husband natural justice on basis that order for wife to have sole parental responsibility for decision making in respect of education was not an order sought by either party and husband not afforded opportunity to make submissions in respect of it – Neither party sought an order that they have any particular aspect of parental responsibility – Open to her Honour, if in best interests of children, to make an order that an aspect of parental responsibility be exercised solely by one parent if parties afforded procedural fairness by inviting submissions – Husband had no opportunity to be heard in respect of proposed order – Failure to do so constitutes appealable error.
Trial Judge made order except for one aspect of parental responsibility for “joint” parental responsibility – Act does not refer to “joint” but rather “parental responsibility” and “equal shared parental responsibility” – Effect of s 61C – Consideration of B and B: Family Law Reform Act 1995 (1997) FLC 92-755 – Consideration of Goode and Goode (2006) FLC 93-286 – Discussion in Goode did not address situation arising in this case where trial Judge allocated one portion of parental responsibility to one parent only - Having done so, issue of how remaining aspects of parental responsibility were to be allocated arose – Unclear whether trial Judge intended parental responsibility (other than education) was to be shared equally and thus exercised jointly, that is, in consultation, or whether parental responsibility was to be…
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.
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AGLC
Newlands & Newlands [2007] FamCA 168
Case
[2007] FamCA 168
Decision Date
CaseChat Overview and Summary
This appeal concerned parenting orders made by a trial judge in the Federal Circuit Court of Australia. The proceedings were heard before the commencement of the *Family Law (Shared Parental Responsibility) Act 2006* (Cth), but judgment and orders were delivered after its commencement. The husband appealed the parenting orders, arguing, among other things, that he was denied natural justice regarding the impact of the new Act. The appeal also involved property orders made by the trial judge.
The court was required to determine several legal issues. These included whether the trial judge failed to provide natural justice by not affording the husband an adequate opportunity to make submissions on the effect of the amending Act, and whether the trial judge misapprehended the nature of the husband's application, thereby vitiating her discretion. Further issues concerned whether the trial judge erred in her findings regarding family violence, the rebuttal of the presumption of equal shared parental responsibility under s 61DA of the *Family Law Act 1975* (Cth), and whether the trial judge denied the husband natural justice by making an order for sole parental responsibility for educational decisions without affording him an opportunity to make submissions. The court also considered whether the trial judge failed to adequately examine and provide reasons for rejecting the recommendations of a family consultant.
The Full Court found that while the trial judge had invited written submissions on the impact of the amending Act, and there was wide publicity surrounding the changes, the husband had not been afforded a sufficient opportunity to make submissions on a specific order concerning sole parental responsibility for educational decisions, constituting an appealable error. Furthermore, the court determined that the trial judge had prima facie misunderstood the nature of the husband's application, which permeated and affected her discretion in assessing the parties' competing proposals. The findings in respect of family violence were also found not to be open on the evidence, which impacted the application of the presumption of equal shared parental responsibility. The trial judge's failure to examine and provide reasons for rejecting the family consultant's recommendations was also identified as an appealable error.
Consequently, the appeal in respect of the parenting orders was allowed, and the matter was remitted for rehearing. The court also noted that as the parenting orders would impact the assessment of factors under s 75(2) of the *Family Law Act 1975* (Cth), the property orders could not stand and would also require reconsideration at the rehearing. Certificates under the *Federal Proceedings (Costs) Act 1981* (Cth) were granted for the appeal and the rehearing.