Parkin and Sykes - [2013] FamCAFC 87

FAMILY COURT OF AUSTRALIA

PARKIN & SYKES

[2013] FamCAFC 87

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against orders which provided for the child to live with the mother and the father’s time to be limited to supervised time on four occasions per year – Where the orders were not a result of any wrongdoing on the part of the father – Where the trial judge made orders in terms proposed by the Independent Children’s Lawyer and consented to by the mother – Where the litigation had spanned most of the child’s life, the parties were unable to cooperate and communicate and the mother was fixated on allegations of mistreatment of the child against the father – Whether the trial judge erred in making final orders – Whether the orders were in the child’s best interests – Where the father complained that the trial judge failed to deal with the alleged “root cause” of the ongoing litigation: the mother’s influence and behaviour in non-compliance with orders for the child to spend time with the father – Where the trial judge had regard to mother’s conduct and accepted that her non-compliant behaviour had been harmful to the child – Where the unchallenged evidence of the Court-appointed single expert was that the ongoing effects of the litigation far outweighed any supposed adverse effects of parenting, and that overall it was not in the child’s best interests to change the child’s residence to live with the father – Where the father did not seek or propose any orders before the trial judge like those he now seeks on appeal – Where in light of the expert evidence there was no utility in adopting orders which provided the parties with a further chance to attempt shared parenting arrangements – Where the real issue for the trial judge’s determination was what parenting orders would bring finality to the litigation and be in the best interests of the child – Where the trial judge properly considered each of the parties’ and the Independent Children’s Lawyer’s proposals, each of which had disadvantages, against these requirements – No appealable error established, appeal dismissed.

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Parkin

RESPONDENT:

Ms Sykes

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC 1320 of 2007

APPEAL NUMBER:

EA 55 of 2012

DATE DELIVERED:	5 June 2013
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Faulks DCJ & May J

HEARING DATE:

5 December 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 March 2012

LOWER COURT MNC:

[2012] FamCA 187

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Vassili
SOLICITOR FOR THE APPELLANT:	Michael Vassili Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Kennedy

SOLICITOR FOR THE RESPONDENT:

Tiyce & Partners Lawyers

COUNSEL FOR THE
INDEPENDENT CHILDREN’S LAWYER:

Ms Ward

SOLICITOR FOR THE
INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The appeal be dismissed.

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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Details

Case: [2013] FamCAFC 87
Decision Date

CaseChat Overview and Summary

This appeal concerns the making of final parenting orders in relation to the only child of the parties, who was aged 11 at the time of the trial and is now aged 12. The orders were final, and provided for the mother to have sole parental responsibility and for the child to live with the mother. The child’s time with the father was ordered to be supervised, and limited to only four occasions per year, each for a period of not less than two hours. The father appeals against those orders. The orders are not a result of any wrongdoing on the part of the father. The appeal was heard by Bryant CJ, Faulks DCJ and May J, who dismissed the appeal. The thrust of the father’s appeal is twofold. First, it is asserted that the trial judge erred in failing to make orders which addressed the mother’s behaviour and provided a further opportunity for a shared parenting arrangement. Second, it is submitted that the orders for time with the father were not in the child’s best interests. The appeal is opposed by both the respondent mother and the Independent Children’s Lawyer. The Full Court found that the trial judge had properly considered the father’s submissions and the expert evidence, and found no error in his approach. The Full Court found that the trial judge had properly considered the evidence and submissions, and exercised his discretion in a way that was not plainly wrong. The appeal was dismissed, and there was no order as to costs.

Orders