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 | of | 2014 |
| APPEAL NUMBER: | EA | 165 | of | 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: |
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- AGLC
- SCARLETT & BRADSHAW [2019] FamCAFC 184
- Case
- [2019] FamCAFC 184
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
The appeal is dismissed.
3.
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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