Parkin v Sykes - [2014] HCASL 95

PARKIN
v
SYKES & ANOR
[2014] HCASL 95
S133/2013

The applicant is the father of a 12 year old boy. The first respondent is his mother. There is an extensive history of litigation between the parties, which began in 2004. On 29 March 2012, Johnston J in the Family Court of Australia made final parenting orders providing that the first respondent have sole parental responsibility of the child. The applicant's time with the child was ordered to be supervised and limited to four occasions per year.
The Full Court of the Family Court (Bryant CJ, Faulks DCJ and May J) dismissed the applicant's appeal. The Court held that Johnston J did not err in failing to determine an outstanding contravention application related to the first respondent's non-compliance with parenting orders, or in finding that the child's best interests be served by the applicant having only recognition or supervised contact with the child. Further, the applicant failed to demonstrate that the trial judge did not properly consider or give weight to the first respondent's behaviour. The expert evidence indicated that there was no utility in adopting orders providing the parties with a further opportunity to share parenting arrangements, and in light of this evidence, the best interests of the child could only be served by Johnston J making the kind of final orders that he did.
The applicant requires an enlargement of time within which to file his application for special leave to appeal the decision of the Full Court of the Family Court. An enlargement should be granted, but the application for special leave to appeal refused. No question of principle falls for determination and an appeal to this Court would have insufficient prospects of success.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

V.M. Bell
13 May 2014

S.J. Gageler

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 Parkin v Sykes

Details

AGLC: Parkin v Sykes [2014] HCASL 95
Case: [2014] HCASL 95
Decision Date

CaseChat Overview and Summary

This case involved the father of a twelve-year-old boy who sought to appeal the final parenting orders made by Johnston J in the Family Court of Australia. The father's appeal was dismissed by the Full Court, which upheld the original decision to grant sole parental responsibility to the child's mother, with the father's contact limited to supervised and infrequent occasions. The father sought an extension of time to file an application for special leave to appeal the decision of the Full Court to the High Court.

The legal issues for the court to consider were whether Johnston J erred in not determining an outstanding contravention application related to the mother's non-compliance with parenting orders, and whether the trial judge properly considered the evidence presented by the father. The Full Court found that the trial judge did not err in their decision and that the father failed to demonstrate that the trial judge did not properly consider or give weight to the mother's behaviour. The Full Court also found that there was no utility in adopting orders providing the parties with a further opportunity to share parenting arrangements, and in light of this evidence, the best interests of the child could only be served by Johnston J making the kind of final orders that he did.

The court granted the father's application for an enlargement of time to file his application for special leave to appeal, but refused the application for special leave to appeal itself. The court found that no question of principle fell for determination and that an appeal to this Court would have insufficient prospects of success. The court directed the Registrar to draw up, sign and seal an order dismissing the father's application.

Orders