SCVG and KLD - [2013] FamCA 565

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2013] FamCA 565

FAMILY LAW – CHILDREN – Interim parenting orders – whether the father’s time with the children should continue to be suspended until further order – expert evidence to be given little weight – expert evidence presented no clear discernible pathway of reasoning – whether there is a risk of psychological harm to the children in spending time with the father – little evidence regarding s 60CC factors.

Sydneywide Distributors Pty Ltd v Red Bull [2002] FCAFC 157

APPLICANT:

SCVG

RESPONDENT:

KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

4 July 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Deputy Chief Justice Faulks

HEARING DATE:

4 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rugendyke

COUNSEL FOR THE RESPONDENT:

Mr Schonell

SOLICITOR FOR THE RESPONDENT:

McPhillamy’s

Orders

A Single Expert be appointed to conduct consultations and to prepare a report in accordance with the Terms of Reference agreed except as to four words between the lawyers for the parties and to include those four words on my determination.
This is a matter in which the Court would be assisted by the appointment of an Independent Children’s Lawyer and I request the Director of the Legal Aid Commission in Canberra to make arrangements for the nomination of such a person as soon as practicable.
I further direct that the Independent Children’s Lawyer as soon as is practicable after his or her appointment consult with the lawyers for the mother and the father to assist in the identification of an appropriate single expert for the purposes of the preparation of the report referred to above.
(a)The children will attend upon a Family Consultant at this Court, Ms W, on 24 July 2013. I request that the Registry confirm the appointment as soon as possible and the time of the required attendance of the children.
(b)In relation to the attendance upon the Family Consultant neither parent is either required or otherwise to attend and the purpose of the interview between the children and the Family Consultant is to enable the Family Consultant to ascertain the children’s wishes and views about the time with and or communications they may have with their father.
(c)In this regard neither child is required to express those views if she does not wish to do so.
(d)In coming to a conclusion about what views might have been expressed by the children, the Family Consultant will take into account the fact that the children have been living with their mother and have not seen their father since February 2013 and that there have been telephone communications between the children and their father, the content and effect of which is not the matter of agreement between the parties.
(e)Upon completion of the consultation, the Family Consultant will either provide a written report to this Court or give oral evidence if that is a more convenient course to be adopted in accordance with the time available for the matter…

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 SCVG and KLD

Details

AGLC: SCVG and KLD [2013] FamCA 565
Case: [2013] FamCA 565
Decision Date

CaseChat Overview and Summary

This matter concerned interim parenting orders before the Family Court of Australia, with SCVG as the applicant and KLD as the respondent. The central dispute revolved around whether the father's physical time with the children should remain suspended pending further orders, particularly in light of concerns about potential psychological harm. The court was also tasked with determining the weight to be given to expert evidence presented by the father, which lacked a clear reasoning pathway.

The court was required to determine the best interests of the children under section 60CC of the *Family Law Act 1975* (Cth), with a primary consideration being the need to protect the children from psychological harm. This involved assessing the contradictory evidence presented by both parents regarding the children's well-being and their relationship with the father. The court also needed to consider the weight to be afforded to the father's expert evidence, given its deficiencies, and the practical difficulties and unexplained issues surrounding the father's proposed time with the children.

Deputy Chief Justice Faulks reasoned that while there was no evidence of physical danger to the children, the risk of psychological harm was a significant concern, necessitating further independent assessment of the children's wishes and views. The court found that the expert evidence presented by the father was of little weight due to a lack of discernible reasoning and insufficient factual basis. Applying the principles from *Sydneywide Distributors Pty Ltd v Red Bull*, the court acknowledged the professional opinions but gave them limited weight in the absence of a clear pathway from facts to conclusions. The court noted the mother's illness and the father's ongoing legal and medical issues, including his good behaviour bond, as relevant factors. Ultimately, the court concluded that the benefit of the children having physical time with their father at this interim stage did not outweigh the importance of other factors, including the potential for psychological harm and the need for a clearer understanding of the children's views.

Consequently, the court ordered the suspension of physical time between the children and their father, pending the receipt of a report from a Family Consultant and further submissions. Telephone contact was permitted to continue. The matter was adjourned for a Family Consultant's report and a subsequent relisting for final determination of parenting orders.

Orders