SCVG and KLD - [2010] FMCAfam 641

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCVG & KLD

[2010] FMCAfam 641

FAMILY LAW – Parenting – long history of litigation between parents – whether children should live with father in Sydney or remain with mother in a country [property] near Canberra – evidentiary issues: s 136 Evidence Act Division 12A, Part 7 Family Law Act; issue estoppel – weight to be given to evidence of expert – issues about evidence of both parents – orders in best interests of children.

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61B, 61DA, 65DAA, 69ZT
Evidence Act 1995, s.136

Blair v Curran (1939) 62 CLR 464
English Exporters (London) Ltd v Eldonwall Ltd [1973] 1 Ch 415
Hughes v National Trustees Executors & Agency Co of Australia Ltd (1979) 143 CLR 134

Pownall & Others v Conlan Management Pty Ltd & Another (1995) 12 WAR 370
Rice v Asplund [2009] FMCAfam 708
Sydney Wide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157
SCVG & KLD [2009] FMCAfam 708
JD Heydon, Cross on Evidence (2000)
J Johnston, “Children’s Adjustment in Sole Custody Compared to Joint Custody Families and Principles for Custody Decision Making” (1995) 33 Families and Conciliation Courts Review 415
J.B. Kelly & M.P. Johnson, “Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions” (2008) 46 FCR 476
J MacIntosh and R Chisholm, “Shared Care and the Children’s Best Interests in Conflicted Separation: A Cautionary Tale From Current Research” (2008) 20(1) Australian Family Lawyer 3
B Smyth, “Time to rethink time? The experience of time with children after divorce” Family Matters No 76, Winter 2005
Odgers, Uniform Evidence Act, 7^th ed, Thompson Law Book Company, 2006

Applicant:

SCVG

Respondent:

KLD

File Number:

SYC 4380 of 2008

Judgment of:

Altobelli FM

Hearing dates:

15, 16, 17, 18 March, 18, 19 May 2010

Date of Last Submission:

19 May 2010

Delivered at:

Sydney

Delivered on:

15 September 2010

REPRESENTATION

Counsel for the Applicant:

Mr Richardson SC with Mr Richards

Solicitors for the Applicant:

Barkus Doolan Kelly Lawyers

Counsel for the Respondent:

Ms Rees SC

Solicitors for the Respondent:

McPhillamy's Lawyers

IT IS NOTED that publication of this judgment under the pseudonym SCVG & KLD is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth). This judgment was previously published under the pseudonym Vanderhum & Doriemus.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 4380 of 2008

SCVG

Applicant

And

KLD

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two girls, [X], who is eight years old, and her sister [Y] who is six years old. For most of the children’s lives the parents have been in litigation, or in dispute, about where the children live and how much time they should spend with the other parent. This is what this case is about.

Background

The applicant father in these proceedings is 59 years old. He is a [occupation omitted] in Sydney. The respondent mother is 48 years old.…

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: SCVG and KLD [2010] FMCAfam 641
Case: [2010] FMCAfam 641
Decision Date: 15 September 2010

CaseChat Overview and Summary

This case involves a lengthy history of litigation between parents about where their two daughters should live, and how much time they should spend with each parent. The father sought to have the children live with him in Sydney, while the mother proposed that they remain living with her in a country town near Canberra. The Federal Magistrates Court was required to determine the best interests of the children, taking into account various factors such as the benefit of having a meaningful relationship with both parents, the need to protect the children from harm, and the capacity of each parent to provide for the children's needs. The court also had to consider evidentiary issues, such as the admissibility of certain evidence and the weight to be given to expert evidence. After considering the evidence and arguments presented by both parties, the court found that it was in the best interests of the children to continue living with their mother in the country town, with contact arrangements with their father in Sydney. The court made specific orders regarding the children's living arrangements, contact time, and travel between parents, taking into account the children's ages, developmental stages, and the history of the case. The court also made orders to facilitate communication and cooperation between the parents, and to ensure the children's safety and well-being.

Orders