SCARLETT & BRADSHAW - [2019] FamCAFC 184

FAMILY COURT OF AUSTRALIA

SCARLETT & BRADSHAW

[2019] FamCAFC 184

FAMILY LAW – APPEAL – PARENTING – Spend time arrangement – Graduated regime of time – Where the parties agree that they should have equal shared parental responsibility and that the child should live with the mother – Where the primary issue for the trial judge was determining the time and manner in which the child would spend time with the father – Whether the trial judge, faced with two competing graduated regimes of time, made orders for a third graduated regime of time, and failed to give reasons for doing so – Where the trial judge was not bound to make one or the other of the sets of orders proposed by the parties and was free to formulate his own orders – Where the trial judge’s reasons are clear and soundly based on the evidence – Whether the trial judge failed to take into account the capacity of the parties to implement the spend time arrangement having regard to s 65DAA(5)(b) and (c) of the Family Law Act 1975 (Cth) – Where the trial judge had regard to the matters set out in s 65DAA(5) – Whether the trial judge erred by having regard to the expert witness’s recommendations despite making a finding that the expert witness did not fully appreciate the father’s poor impulse control – Where the orders made did not mirror the expert witness’s recommendations – Where a trial judge is entitled to accept some parts of a witness’s evidence and not accept other parts – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application in an Appeal to adduce further evidence – Where the father provided a Response to the mother’s application to adduce further evidence – Where the further evidence of both parties is accepted insofar as it relates to the father’s completion of an anger management course – Where the applications are otherwise dismissed.

FAMILY LAW – APPEAL – COSTS – Order made for the filing of written submissions as to costs, as requested by the parties.

Family Law Act 1975 (Cth) s 65DAA

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ & VAJ (1998) 197 CLR 172; [1998] HCA 67
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Ms Scarlett

RESPONDENT:

Mr Bradshaw

FILE NUMBER:

SYC

4319

2014

APPEAL NUMBER:

165

2018

DATE DELIVERED:

24 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Austin & Tree JJ

HEARING DATE:

22 May 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 November 2018

LOWER COURT MNC:

[2018] FamCA 982

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Christie SC

SOLICITOR FOR THE APPELLANT:

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.

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Details

AGLC: SCARLETT & BRADSHAW [2019] FamCAFC 184
Case: [2019] FamCAFC 184
Decision Date: 24 October 2019

CaseChat Overview and Summary

Scarlett and Bradshaw were the parties in a family law matter concerning the arrangements for the child’s time to be spent with each parent. The court was required to decide several legal issues, including whether the trial judge had correctly formulated the child’s time-sharing arrangement, whether the trial judge had appropriately considered the parents’ capacity to implement the arrangement, and whether the trial judge had erred in considering the expert witness’s recommendations. The court also considered whether further evidence could be presented on appeal regarding the father's completion of an anger management course.

The court found that the trial judge was not bound to adopt either of the parents’ proposed time-sharing arrangements and had the discretion to formulate his own orders. The court concluded that the trial judge's reasoning was sound and based on the evidence presented. It was held that the trial judge had adequately considered the parents’ capacity to implement the arrangement and did not err in considering the expert witness’s recommendations, as a trial judge can accept parts of a witness’s evidence while disregarding others. The appeal was dismissed, and the court allowed the parties to present further evidence regarding the father's completion of an anger management course. The court also directed that any party seeking an order for the costs of the appeal must file written submissions within the specified timeframe.

The court dismissed the appeal and directed that any party seeking costs must file written submissions. The court allowed the application to adduce further evidence relating to the father's completion of an anger management course.

Orders

Orders of the court

The Application in an Appeal filed 3 May 2019 and the Response to an Application in an Appeal filed 20 May 2019 are allowed in part, so as to receive on the appeal the evidence of the parties as to the respondent’s completion of the anger management course, but the applications are otherwise dismissed.

The appeal is dismissed.

Any party seeking an order for the costs of the appeal is to file written submissions within 28 days, with the opposing party to file any written submissions in reply within a further 14 days. The party seeking the costs may file submissions in response within a further seven (7) days.

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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