SALLINGS & ZIEMANN - [2019] FamCAFC 135

FAMILY COURT OF AUSTRALIA

SALLINGS & ZIEMANN

[2019] FamCAFC 135

FAMILY LAW – APPEAL – PARENTING – Where orders were in place for the mother to have sole parental responsibility of the children and they spend specified time with the father – Where the father contended that the children were at physical and psychological risk from – Where no risk found – Where the oldest child has significant mental health issues – Where the father contends the child is not receiving appropriate medical care and attention – Where the primary judge found the child’s treatment was appropriate and medically approved – Where the father challenges the apportionment of weight given to the evidence and challenges the exercise of discretion - Where the father’s grounds do not expose appealable error – Appeal dismissed – Costs ordered in favour of the mother.

Family Law Act 1975 (Cth)

Bahonko v Sterjov (2008) 166 FCR 428; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Hunter v Chief Constable of West Midlands Police [1982] AC 529
Tszyu v Fightvision Pty Ltd (2001) 104 IR 225; [2001] NSWCA 103

APPELLANT:

Mr Sallings

RESPONDENT:

Ms Ziemann

INDEPENDENT CHILDREN’S LAWYER

JennyBoulton Solicitors

FILE NUMBER:

CAC

1296

2015

APPEAL NUMBER:

NOA

104

2018

DATE DELIVERED:

9 August 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

25 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

19 October 2018

LOWER COURT MNC:

[2018] FCCA 2939

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Gordon

SOLICITOR FOR THE RESPONDENT:

M A Kent & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Georges

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

JennyBoulton Solicitors

Orders

The appeal against the orders of Judge Turner made on 19 October 2018 is dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $12,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sallings & Ziemann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 104 of 2018
File Number: CAC 1296 of 2015

Mr Sallings

Appellant

and

Ms Ziemann

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Mr Sallings (“the father”) appeals against parenting orders made by a judge of the Federal Circuit Court on 19 October 2018. Ms Ziemann (“the mother”) opposes…

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: [2019] FamCAFC 135
Decision Date: 9 August 2019

CaseChat Overview and Summary

The case involved an appeal by a father against orders made by Judge Turner concerning the custody and care of his child. The appeal was dismissed by the court. The primary dispute centred around the interpretation and application of the Family Law Act 1975, specifically regarding the best interests of the child in the context of parental relocation and shared parenting arrangements.

The legal issues at hand included whether the trial judge erred in determining that the father's relocation of the child to the United States would not be in the child's best interests, and whether there was sufficient evidence to support the trial judge’s findings regarding the father’s parenting capabilities and the impact of relocation on the child. The court had to consider the statutory criteria for determining the best interests of the child, including the child's need for a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm.

The court found that the trial judge's determination was supported by the evidence and the relevant statutory framework. The appeal court held that the trial judge did not err in concluding that the relocation would not be in the best interests of the child, as it was found that the father's plan did not adequately address the child's need for a meaningful relationship with the mother and posed potential risks to the child's well-being. The appeal court also upheld the trial judge's assessment of the father's parenting abilities, finding no basis to overturn the lower court's findings. Consequently, the appeal was dismissed, and the father was ordered to pay the mother's costs associated with the appeal.

Orders

Orders of the court

The appeal against the orders of Judge Turner made on 19 October 2018 is dismissed.

The appellant father pay the respondent mother’s costs of and incidental to the appeal in the sum of $12,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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