FAMILY COURT OF AUSTRALIA
| SARGENT & SELWYN | [2020] FamCAFC 110 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Sole parental responsibility – Spend time arrangements – Best interests – Adequacy of reasons – Challenges to the weight given to particular evidence – No errors of fact – No denial of procedural fairness – Allegation of bias – No merit in any of the 19 grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Slip rule – Appeal from order corrected pursuant to the slip rule – Accidental omission of words – Order correctly amended to reflect the Court’s intention – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Family violence – Where family violence was not an issue at trial – Where the material would not point to a different conclusion – Where the material was available at trial – No procedural unfairness if application dismissed – Application dismissed. FAMILY LAW – APPEAL – COSTS – Both appeals wholly unsuccessful – Father to pay the mother’s costs of the substantive appeal – Father to pay the Independent Children Lawyer’s costs of both appeals. |
| Evidence Act 1995 (Cth) Family Law Rules 2004 (Cth) Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) Sadowski, Christine and Jennifer McIntosh, ‘On laughter and loss: Children’s views of shared time parenting and security post-separation’ (2016) 23(1) Childhood 69 |
| APPELLANT: | Mr Sargent |
| RESPONDENT: | Ms Selwyn |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | SYC | 7405 |
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- AGLC
- SARGENT & SELWYN [2020] FamCAFC 110
- Case
- [2020] FamCAFC 110
- Decision Date
CaseChat Overview and Summary
The Full Court found that none of the grounds of appeal had any merit. The primary judge's reasons were adequate, and there had been no errors of fact or denial of procedural fairness. The allegation of bias was also without merit. The Full Court found that the appeal in respect of the order corrected under the slip rule was also without merit, as the correction was appropriate and did not change the intention of the primary judge. The application to adduce further evidence was dismissed, as the evidence related to family violence, which had not been an issue at trial, and the evidence was available at the time of the trial. The Full Court held that there was no procedural unfairness in dismissing the application.
The father was ordered to pay the mother's costs of the substantive appeal, as well as the Independent Children's Lawyer's costs of both appeals. The appeal was dismissed in its entirety, and the original orders of the Family Court of Australia were upheld. The Full Court emphasised the importance of both parties and their legal representatives approaching final hearings with a clear understanding of the issues in dispute and ensuring that all relevant evidence is adduced at the appropriate time.
Orders
Orders of the court
1.
Appeal no. EAA 142 of 2018 be dismissed.
2.
Appeal no. EAA 125 of 2019 be dismissed.
3.
The appellant pay the respondent’s costs fixed in the sum of $880.
4.
The appellant pay the Independent Children’s Lawyers costs fixed in the sum of $6,666.
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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