SARGENT & SELWYN

Case [2020] FamCAFC 110


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.

Aldridge & Keaton (2009) FLC 93-421; [2009] FamCAFC 229
Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Slater v Light (2013) 45 Fam LR 41; [2011] FamCAFC 1
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
VR v RR (2002) FLC 93-099; [2002] FamCA 320

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65DAA, 69ZT, 117(2A)

Family Law Rules 2004 (Cth)
Federal Circuit Court Rules 2001 (Cth) r 16.05(2)

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 appeal in Sargent & Selwyn was brought by the father against a decision of the Family Court of Australia, which had made final parenting orders concerning the two children of the relationship. The father appealed against the orders, which included sole parental responsibility for the children being awarded to the mother and certain spend-time arrangements being made. The primary judge had considered evidence from both parents and a range of other witnesses, including expert evidence. The appeal raised a number of issues, including the adequacy of the reasons given by the primary judge, the weight given to particular evidence, and whether there had been a denial of procedural fairness or bias.

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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