Appearances: Ms Winfield of counsel (instructed by Messrs Aubrey Brown Partners, Solicitors, appeared on behalf of the appellant father.
Mr Dwyer of counsel (instructed by Messrs John J. Moore & Co, Solicitors, appeared on behalf of the respondent intervener.
This is an appeal by the father against orders made on 26 March 1993 as follows:
"1. That the Intervener Maternal Grandmother, M, have custody of the child, A born … 1989.
2That the father, R, have access to the said child each alternate weekend from 6 p.m. Friday to 6 p.m. Sunday, commencing at 6 p.m. Friday, 26 March 1993.
3Further that the Intervener Maternal Grandmother be responsible for transport in connection with the delivery and pick up of the said child for access purposes.
4That the father have access to such child for one half of all school holiday periods, to be arranged between the parties.
5That liberty be granted to either party to apply in relation to the implementation of any of the above orders."
The relevant facts are:-The child, the subject of these proceedings, A was born in 1989. Her father, R, is the appellant but her mother, K, although initially involved in the proceedings, did not appear at the hearing and sought no orders in relation to the child. K was the adopted daughter of M, the Intervener, who, at the hearing before the trial Judge, sought an order that she have custody of the said child. The father sought an order that he have the custody of the child.
The father and K (hereinafter referred to as "the mother") commenced to reside in a de facto relationship in about August 1985. They finally separated in October 1989. Prior to the birth of the child, they resided at X, Queensland. At that time, the father was employed in an occupation which necessitated him being away from home for up to weeks at a time. As a consequence, prior to the birth of A, the mother went to reside with her parents in their home at U on the Central Coast of New South Wales. The father visited her there on several occasions and was present at the birth of their daughter. After the birth, the father returned to X whilst the mother and the child remained at U for a few weeks. Both then, accompanied by the Intervener, returned to X where the mother resumed her relationship with the father. The father continued in his employment and as a consequence was absent from the home from time to time including one period of seven weeks. He did not work for a period of two months from March 1989 during which time he and the mother jointly cared for the child. He…
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
Rice v Miller [1993] FamCA 87
Case
[1993] FamCA 87
Decision Date
CaseChat Overview and Summary
This case involved an appeal by the father, Mr. Rice, against orders made by the Family Court of Australia concerning the custody and access of his daughter, A. The respondent to the appeal was Ms. Miller, the maternal grandmother, who had been granted custody of A by the trial judge. The child's mother was not a party to the appeal.
The primary legal issues before the Full Court were whether the trial judge erred in his findings of fact and inferences drawn from the evidence, and more significantly, whether he failed to recognise or give sufficient weight to the father's status as the natural parent in his determination of custody, particularly in relation to the maternal grandmother. The appeal also concerned the principles governing appeals from discretionary orders made by the Family Court.
The Full Court considered extensive case law regarding the weight to be given to the fact of parenthood in custody disputes between a natural parent and a non-parent. The Court adopted the reasoning that while parenthood is an important and significant factor to be considered in determining the welfare of the child, it does not establish a presumption in favour of the natural parent or create a preferential position from which the court begins its decision-making process. The Court emphasised that each case must be determined on its own merits, with the paramount consideration always being the welfare of the child. The Court found that the inferences and findings of fact made by the trial judge were open to him on the evidence presented.
The Court dismissed the appeal, upholding the orders made by the trial judge. The reasoning was that the trial judge's decision was open to him on the evidence and that he correctly applied the principles that the welfare of the child is the paramount consideration, and that while parenthood is a significant factor, it does not create a presumption in favour of the natural parent.