FAMILY COURT OF AUSTRALIA
| SANDLER & KERRINGTON | [2007] FamCA 479 |
| FAMILY LAW - APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CONTRAVENTION OF PARENTING ORDERS – VARIATION OF PRIMARY ORDER – Parenting orders made by trial Judge only nine months before contravention hearing – Those orders were that child live with mother and spend time with father - Numerous contravention applications before court – father alleging the mother had committed numerous, and ongoing, breaches of orders that child spend time with the father – alleged that the mother had also contravened various orders about specific matters relating to child – mother did not appear at contravention hearing and her solicitor was granted leave to withdraw – issues were raised as to the mother not being served by special service in relation to contravention applications – Coker FM suspended parenting orders – recovery order issued for Police to take possession of child and deliver into possession of father – it was argued on appeal that Coker FM erred as the father did not apply for a recovery order – Coker FM ordered that, until further order, child to live with father – on appeal, the appellant argued that Coker FM erred in finding on father’s material that alleged contraventions proved on prima facie basis - on appeal, Counsel for mother argued that there was evidence before trial Judge that child would experience trauma if moved from residence with mother – Further, father was not proposing a change of residence for child as an interim order – procedural unfairness – failure to follow Rice and Asplund - appellant sought to adduce further evidence before the court relating to reasons for judgment of trial Judge and expert evidence that was before him – respondent also sought to put further evidence before court |
| Family Law Rules 2004, r 7.03 Family Law Act 1975 (Cth), ss 70NFB(2), s70NFB(2)(c), 70NBA(2)(c), 70NBA, 70NBA(1), 60CC(2), 60CC(2)(1), 60CA, 70NEB(1)(b), 61DA, 64B, 64B(1), 4(1), 64, 67Q, Part VII Division 13A |
Hayman v Hayman (1976) FLC 90-140
Rice v Asplund (1979) FLC 90-725
McManus v McManus (1969) 13 FLR 449
| APPELLANT: | MS SANDLER |
| RESPONDENT: | MR KERRINGTON |
| FILE NUMBER: | TVM | 3112 | of | 2006 |
| APPEAL NUMBER: | NA | 28 | of | 2007 |
| DATE DELIVERED: | 24 May 2007 |
| PLACE DELIVERED: | Brisbane |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 10 MAY 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 21 March 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 238 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Brasch |
| SOLICITOR FOR THE APPELLANT: | Emerson Family Law |
| COUNSEL FOR THE RESPONDENT: | Appearing on his own behalf |
Orders
That the appeal be dismissed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Sandler & Kerrington.
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 28…
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- AGLC
- Sandler & Kerrington [2007] FamCA 479
- Case
- [2007] FamCA 479
- Decision Date
CaseChat Overview and Summary
This case involved an appeal concerning a custody order. The appellant sought to overturn a decision that reversed an earlier custody order. The court was required to consider the weight to be given to previous custody determinations when a new application is made.
The central legal issue was the standard and principles that a court should apply when considering an application to vary or reverse an existing custody order, particularly when the original order was made by consent or after a contested hearing. The court had to determine how to balance the need for finality in litigation with the paramount consideration of the child's welfare.
The court affirmed that earlier custody orders, and the reasons and material upon which they were based, must be given due regard. Applications to reverse such orders should not be entertained lightly and require substantial grounds. The applicant must demonstrate a changed circumstance, a new factor, or a previously undisclosed material factor that justifies a fresh consideration of the child's welfare. While earlier decisions and findings of fact are important, the court is not bound by previous assessments of the parties or their views on the child's best interests. Once satisfied that a review is warranted, the court must determine custody afresh, applying the principles of section 64 and treating the child's welfare as the paramount consideration, taking into account all relevant factors including the duration of the existing arrangement and the potential advantages or disadvantages of a change. The appeal was dismissed.
The central legal issue was the standard and principles that a court should apply when considering an application to vary or reverse an existing custody order, particularly when the original order was made by consent or after a contested hearing. The court had to determine how to balance the need for finality in litigation with the paramount consideration of the child's welfare.
The court affirmed that earlier custody orders, and the reasons and material upon which they were based, must be given due regard. Applications to reverse such orders should not be entertained lightly and require substantial grounds. The applicant must demonstrate a changed circumstance, a new factor, or a previously undisclosed material factor that justifies a fresh consideration of the child's welfare. While earlier decisions and findings of fact are important, the court is not bound by previous assessments of the parties or their views on the child's best interests. Once satisfied that a review is warranted, the court must determine custody afresh, applying the principles of section 64 and treating the child's welfare as the paramount consideration, taking into account all relevant factors including the duration of the existing arrangement and the potential advantages or disadvantages of a change. The appeal was dismissed.
Orders
Orders of the court
1.
That the appeal be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
In Rice and Asplund (1979) FLC 90-725 Evatt CJ, with whom the other members of the Court agreed said:Counsel for the appellant relied on the case of McManus (1969) 13 FLR 449. In that case the father applied successfully to vary a consent custody order. The Full Court of the Supreme Court of New South Wales allowed the appeal, finding that the judge, Selby J., had given insufficient weight to the earlier decree, and I quote: ``The decision to overturn such decree made with the consent of the father, consent given in the light of the then known circumstances, is one which requires most substantial grounds. A reversal of the decree would require the discharge of a particularly heavy onus on the husband, a criterion not found in the affirmative by his Honour. One would look for new facts and circumstances to be revealed before this onus would be discharged.'' The case of McManus was referred to by the Full Court of the Family Court in the case of Hayman and Hayman (1976) FLC 90-140 at p. 75,680. That case, like the one before us, concerned a custody decision in which a Judge of the Family Court had reversed an earlier custody order made by the Supreme Court. One ground on which the appeal was allowed was that the Family Court Judge did not have regard to the prior decision of the Supreme Court, or to the reasons for that decision. In fact, the Family Court had neither the transcript nor the reasons for that decision before it.The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change in an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case. Once the court is satisfied that there is a new factor or a change in circumstances, then the issue of custody is to be determined in the ordinary way. The court must apply the principles of section 64 and weigh up the factors for and against the proposals of each party, having regard to the welfare of the child as the paramount consideration. One of these factors is the length of time the child has been in a particular situation. Another is any earlier decision of the court, and the reasons for that decision. The possible advantages or disadvantages of a change in custody need consideration along with all the other usual factors. While the court should give weight to any earlier decision and, in particular, to any findings of fact, the judge is not bound by the earlier court's assessment of the parties or views as to the best interests of the child. These are matters which cannot be determined by any fixed or absolute standard (emphasis added).
Ratio Decidendi
Legal Principle Established
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