Paggett & Cable - [2015] FamCAFC 186

FAMILY COURT OF AUSTRALIA

PAGGETT & CABLE

[2015] FamCAFC 186

FAMILY LAW – APPEAL – Where the appellant father appealed final parenting orders – Where the final hearing occurred in October 2013 but the evidence was re-opened in February 2015 and final orders made in March 2015 – Where the appellant contended that delay caused the trial judge’s discretion to miscarry – Where delay of itself does not manifest appealable error – Where the trial judge failed to give satisfactory reasons for ordering that the child spend less time with the father than he wanted, the Family Consultant recommended, and the mother proposed – Where the trial judge failed to properly engage with the evidence on that issue – Where the trial judge found the evidence rebutted the presumption of equal shared parental responsibility by reason of the parties’ incessant conflict but still made orders requiring the parties to consult over the child’s schooling – Where the underlying contradiction showed the exercise of discretion miscarried – Where the order made for the child’s time with the father to be supervised for a short period was not reflective of the evidence and the trial judge erred in making that order – Where the trial judge’s failure to make prescriptive and enforceable orders was a material error – Where appealable error established – Appeal allowed – Where there was no practicable option but to remit the proceedings for re-hearing – Where, pending further orders following re-hearing, the appealed orders shall apply – Where both parties were granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth), ss 61B, 61DA, 65DAC,
Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 8, 9

Dundas & Blake (2013) FLC 93-552
Herridge v Handerson (2011) 46 Fam LR 367
McCrossen v McCrossen (2006) FLC 93-283
U v U (2002) 211 CLR 238

APPELLANT:

Mr Paggett

RESPONDENT:

Ms Cable

FILE NUMBER:

CAC

1013

2012

APPEAL NUMBER:

2015

DATE DELIVERED:

25 September 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Strickland & Austin JJ

HEARING DATE:

2 September 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2015

LOWER COURT MNC:

[2015] FamCA 173

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Millar

SOLICITOR FOR THE APPELLANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Harper

SOLICITOR FOR THE RESPONDENT:

Pappas J Attorney

Orders made on 2 September 2015

Leave be granted to the appellant to amend the Notice of Appeal filed
9 April 2015 as follows:
(a) to include the words "and the Court failed to take into account and have regard to the expert evidence of Ms [E]" at the end of Ground 5; and
(b)to delete reference to “Order 7” as an order stated to be appealed in Part D of the Notice of Appeal.

Orders made on 25 September 2015

The appeal is allowed.
The orders made by the Family Court of Australia at Canberra on

17 March…

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 Paggett & Cable

Details

AGLC: Paggett & Cable [2015] FamCAFC 186
Case: [2015] FamCAFC 186
Decision Date: 25 September 2015

CaseChat Overview and Summary

The appeal, which was filed on 9 April 2015, challenged the orders relating to: (a) The allocation of parental responsibility for the child exclusively to the mother, subject to her consultation with the father about the child’s school enrolment; (b) The manner in which the child would spend time with the father; and (c) The requirement for a member of the paternal family to be present when the child spends time with the father overnight for approximately the next nine months. The father's essential contention was that the delay between the trial in October 2013 and when the evidence was re-opened in February 2015 was so great that it caused the trial judge’s discretion to miscarry, but as the father properly recognised, delay of itself does not manifest appealable error. The father also contended that the trial judge failed to give satisfactory reasons for ordering that the child spend less time with the father than he wanted, the Family Consultant recommended, and the mother proposed. The trial judge failed to give a satisfactory explanation for ordering that the child spend less time with the father than he wanted, the Family Consultant recommended, and even the mother proposed. The error had significant ramifications because the orders were liable to dictate the child’s personal interaction with the father for the next 14 years. The father therefore established appealable error. The orders provided for the mother to have sole parental responsibility for the child, subject to her consultation with the father about decisions concerning the child’s school enrolment. The trial judge made the following findings about the nature of the parties’ difficulties with communication: "It would be desirable that both parents contributed to decisions about [the child’s] long term welfare but it would be unrealistic at this point to dictate that there should be mutual consultation and cooperation in reaching joint decisions about [the child’s] future." The trial judge made an order which required the parties to consult over the schools the child should attend, and to factor into their discussions the father’s capacity to pay the school fees and expenses, and furthermore, to confer over the child’s diet. The unenforceability of Order 2(b) compounded the underlying contradiction between its requirement for the parties’ consultation and the rebuttal of the presumption of equal shared parental responsibility by reason of their incessant conflict. The errors infected the premise of Orders 1 and 2 and the exercise of discretion to make the orders in those terms miscarried. The father sought and, with the mother’s consent, was granted leave at the appeal to amend Ground 5 to include a contention that the trial judge also failed to “take into account and have regard to” the expert evidence of the Family Consultant. The father contended that the orders made by the trial judge did not satisfactorily correlate with the evidence, which contention was correct. Some of the trial judge’s findings were inconsistent and such inconsistency vitiated the orders. The orders were incongruent with not only the evidence given by the mother, but also the more generous recommendations of the Family Consultant and the more expansive proposal of the father. The orders did not properly engage with the evidence on the issue. The father additionally asserted the trial judge failed to properly evaluate his proposal, but that was not as evident as the failure to engage with the evidence. The trial judge ordered that, for the remaining nine months of 2015, the child must be supervised by a member of the paternal family when spending overnight time with the father each alternate weekend. No aspect of the evidence suggested the child was in need of protection from any sort of harm while in the father’s care. The order made by the trial judge was not, therefore, reflective of any concern for the safety of the child ultimately held by the mother. The orders made by the trial judge should remain in place until fresh orders were made following the re-hearing. The appeal succeeded on various questions of law. The mother was the recipient of a grant of legal aid and so no occasion arises to order her payment of the father’s costs. The father is granted certificates under ss 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth). Nor was there any reason for the father to pay the mother’s costs and so, on her application, she is granted certificates under ss 6 and 8 of the same Act.

Orders