SANDWELL & SANDWELL - [2019] FamCAFC 24

FAMILY COURT OF AUSTRALIA

SANDWELL & SANDWELL

[2019] FamCAFC 24

FAMILY LAW – APPEAL – PARENTING – Change in living arrangements – Single expert report – Father’s psychiatric health – Whether the primary judge erred by relying on assertions of risk of harm posed by the father’s psychiatric health in the single expert report as a basis for changing the older child’s residence – Where the primary judge determined parental responsibility and with whom the children would live based on the children’s strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together – No error demonstrated.

FAMILY LAW – APPEAL – PARENTING – Supervised time – Where the primary judge ordered that the children spend supervised time with the father – Where the primary judge took into account the single expert’s opinion in ordering supervised time – Where any risk posed by the father’s psychiatric health could not be ameliorated by an order for supervision – Error demonstrated – Appeal allowed in part – Order for supervised time set aside – Interim parenting orders made in lieu by consent.

Family Law Act 1975 (Cth) ss 60CC, 61DA(4)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT:

Mr Sandwell

RESPONDENT:

Ms Sandwell

INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

FILE NUMBER:

NCC

3665

2017

APPEAL NUMBER:

149

2018

DATE DELIVERED:

15 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

5 February 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 October 2018

LOWER COURT MNC:

[2018] FamCA 1030

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cummings SC with Ms Lioumis

SOLICITOR FOR THE APPELLANT:

Mullane & Lindsay

COUNSEL FOR THE RESPONDENT:

Dr Barnett

SOLICITOR FOR THE RESPONDENT:

Legal Aid New South Wales Newcastle Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Foat Roberts Lawyers

Orders

IT IS ORDERED:

The appeal against the orders made by Austin J on 26 October 2018 is allowed in part.
Orders 4, 5 and 6 made by Austin J on 26 October 2018 be set aside.

BY CONSENT IT IS ORDERED:

In lieu of the orders 4, 5 and 6 dated 26 October 2018, that the children shall spend time with the father on Friday and Sunday from 10.00 am to 4.00 pm in accordance with the availability of H Contact Centre, F Centre or Relationships Australia (“the changeover facilities”), or at other times as agreed between the parties and in accordance with the changeover facilities, with the father to nominate his preferred changeover facility.
That the father shall be responsible for the costs of the changeover facilities.
That the parties do all things and sign all documents forthwith, and in any event within twenty-four (24) hours, for the changeover facilities to facilitate changeover.

IT IS FURTHER ORDERED:

The appeal is…

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 SANDWELL & SANDWELL

Details

AGLC: SANDWELL & SANDWELL [2019] FamCAFC 24
Case: [2019] FamCAFC 24
Decision Date: 15 February 2019

CaseChat Overview and Summary

The appeal in Sandwell & Sandwell involved a dispute over parenting arrangements between the parties. The primary judge had made orders concerning the living arrangements and supervised time with the father, which were contested by the father in the appeal. The father argued that the primary judge had erred in relying on the assertions of risk of harm posed by his psychiatric health in the single expert report to change the older child's residence. The father contended that the primary judge should have considered the children's strong attachment to him and the lack of risk in his care. The primary judge had ordered that the children spend supervised time with the father, taking into account the single expert's opinion.

The legal issues before the court were whether the primary judge had erred in relying on the assertions of risk of harm posed by the father's psychiatric health in the single expert report as a basis for changing the older child's residence, and whether the primary judge had erred in ordering supervised time with the father. The court had to determine whether the primary judge had given appropriate weight to the father's psychiatric health and the risk it posed to the children, and whether the risk could be ameliorated by an order for supervision.

The court found that the primary judge had not erred in relying on the assertions of risk of harm posed by the father's psychiatric health in the single expert report as a basis for changing the older child's residence. The court found that the primary judge had appropriately considered the children's strong attachment to the mother, the lack of a risk to them in her care and the desirability of the children living together. However, the court found that the primary judge had erred in ordering supervised time with the father, as any risk posed by his psychiatric health could not be ameliorated by an order for supervision. The appeal was allowed in part, and the order for supervised time was set aside. Interim parenting orders were made in lieu by consent.

The final orders of the court were that the appeal against the orders made by Austin J on 26 October 2018 was allowed in part, and orders 4, 5 and 6 made by Austin J on 26 October 2018 were set aside. In lieu of the orders 4, 5 and 6 dated 26 October 2018, the children were to spend time with the father on Friday and Sunday from 10.00 am to 4.00 pm in accordance with the availability of H Contact Centre, F Centre or Relationships Australia, with the father to nominate his preferred changeover facility. The father was to be responsible for the costs of the changeover facilities, and the parties were to do all things and sign all documents forthwith, and in any event within twenty-four (24) hours, for the changeover facilities to facilitate changeover. The appeal was otherwise dismissed, and the appellant was to pay the costs of the Independent Children's Lawyer fixed in the sum of $2,100.00 within twenty-eight (28) days of the date of these orders.

Orders

Orders of the court

IT IS ORDERED:

The appeal against the orders made by Austin J on 26 October 2018 is allowed in part.

Orders 4, 5 and 6 made by Austin J on 26 October 2018 be set aside.

BY CONSENT IT IS ORDERED:

In lieu of the orders 4, 5 and 6 dated 26 October 2018, that the children shall spend time with the father on Friday and Sunday from 10.00 am to 4.00 pm in accordance with the availability of H Contact Centre, F Centre or Relationships Australia (“the changeover facilities”), or at other times as agreed between the parties and in accordance with the changeover facilities, with the father to nominate his preferred changeover facility.

That the father shall be responsible for the costs of the changeover facilities.

That the parties do all things and sign all documents forthwith, and in any event within twenty-four (24) hours, for the changeover facilities to facilitate changeover.

IT IS FURTHER ORDERED:

The appeal is otherwise dismissed.

That the appellant pay the costs of the Independent Children’s Lawyer fixed in the sum of $2,100.00 within twenty-eight (28) days of the date of these orders.

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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.