SANDS & GARD - [2016] FamCAFC 137

FAMILY COURT OF AUSTRALIA

SANDS & GARD

[2016] FamCAFC 137

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made an order excluding the father from filing an initiating application for parenting orders for two years – Where this order was made notwithstanding the principles in Rice and Asplund (1979) FLC 90-725 – Where the respondent conceded that this order was made without power – Appeal against this order allowed.

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where the trial judge made orders that the mother have sole parental responsibility and made no orders for the children to spend time with the father – Where the trial judge made no findings in regards to assertions of family violence – Where the trial judge found that the parties had no working relationship – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal was successful in relation to only one ground and the remaining grounds dismissed – Where it is not appropriate to order a costs certificate – No order as to costs.

Family Law Act 1975 (Cth) ss 60CC, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Browne & Keith [2015] FamCAFC 143
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Metwally v University of Wollongong (1985) 60 ALR 68

APPELLANT:

Mr Sands

RESPONDENT:

Ms Gard

FILE NUMBER:

ADC

3122

2011

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

28 July 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland, Ainslie-Wallace & Aldridge JJ

HEARING DATE:

5 July 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 June 2015

LOWER COURT MNC:

[2015] FCCA 2719

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Horvat

SOLICITOR FOR THE APPELLANT:

CG Family Law

COUNSEL FOR THE RESPONDENT:

Mr Childs

SOLICITOR FOR THE RESPONDENT:

Norman Waterhouse Lawyers

Orders

The appeal against paragraph 7 of the orders made by Judge Mead on 9 June 2015 is allowed and paragraph 7 is set aside.
The appeal against the orders of Judge Mead made on 9 June 2015 is otherwise dismissed.

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 Sands & Gard 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 50 of 2015
File Number: ADC 3122 of 2011

Mr Sands

Appellant

and

Ms Gard

Respondent

REASONS FOR JUDGMENT

Mr Sands (“the father”) by Notice of…

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 SANDS & GARD

Details

AGLC: SANDS & GARD [2016] FamCAFC 137
Case: [2016] FamCAFC 137
Decision Date: 28 July 2016

CaseChat Overview and Summary

The appeal before the court involved the parties, Sands and Gard, in a dispute regarding final parenting orders. Sands, the father, appealed the orders made by Judge Mead on 9 June 2015, which included an order excluding him from filing an initiating application for parenting orders for two years. Gard, the mother, conceded that this order was made without power. Sands also appealed the orders that granted Gard sole parental responsibility and made no provisions for the children to spend time with Sands. The trial judge had made no findings in relation to Gard’s assertions of family violence and found that the parties had no working relationship.

The legal issues that the court needed to decide were whether the trial judge had the authority to exclude Sands from filing an initiating application for parenting orders for two years, and whether the trial judge had made appropriate findings regarding parental responsibility and time with the children. The court considered the principles in Rice and Asplund (1979) FLC 90-725, which emphasised the importance of making findings and considering the best interests of the children.

The court found that the trial judge had no power to make the order excluding Sands from filing an initiating application for parenting orders for two years. The court also found that the trial judge had failed to make findings in relation to Gard’s assertions of family violence and had not adequately considered the best interests of the children in making the orders regarding parental responsibility and time with the children. However, the court found that the orders regarding parental responsibility and time with the children were otherwise appropriate. The appeal was successful in relation to only one ground, and the remaining grounds were dismissed.

The court allowed the appeal against paragraph 7 of the orders made by Judge Mead on 9 June 2015 and set aside that paragraph. The court dismissed the appeal against the orders of Judge Mead made on 9 June 2015, except for the order regarding paragraph 7. The court did not order a costs certificate as the appeal was only partially successful.

Orders

Orders of the court

The appeal against paragraph 7 of the orders made by Judge Mead on 9 June 2015 is allowed and paragraph 7 is set aside.

The appeal against the orders of Judge Mead made on 9 June 2015 is otherwise dismissed.

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

Background

Background to the litigation

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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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