FAMILY LAW – CHILDREN – RELATIONSHIP BETWEEN EQUAL SHARED PARENTAL RESPONSIBILITY AND EQUAL OR SUBSTANTIAL AND SIGNIFICANT TIME – Interim orders- Where a previous order for equal shared parental responsibility had been made – Where that order continued to operate – Where it had previously been determined in a final hearing that equal time was not in the best interests of the children - Whether by virtue of an existing order for equal shared parental responsibility, a “legislative pathway” is created that requires a trial judge to consider again whether an order for equal time or substantial and significant time should be made – Consideration of Goode & Goode (2006) FLC 93-286 and Marvel v Marvel (2010) 240 FLR 367 – Where 65DAA operates if a parenting order for parental responsibility has been made and continues to operate, such that the provision is triggered irrespective of whether the order was made in current or prior proceedings – Where 65DAA was not referred to in the judgment – Where an inference can be drawn that 65DAA had been considered – Where determination made that equal time or substantial and significant time is not in the child’s best interests one of the essential preconditions to the making of an order under s 65DAA(1)(c) or s 65DAA(2) (e)(e) has failed and as a consequence, whether or not such an order was reasonably practicable is irrelevant - Consideration of McCall & Clark (2009) FLC 93-405 – Where the present application was not for equal time – Whether failure to make a finding about equal or substantial and significant time constitutes appealable error – McCall & Clark distinguished – HELD – No appealable error
FAMILY LAW – APPEAL – EXPERT REPORTS – Where the primary judge did not afford significant weight to expert opinion evidence adduced to establish whether the father posed a risk of harm to the children – HELD – No appealable error
FAMILY LAW – APPEAL – SUPERVISED TIME – Whether the primary judge erred in failing to make an order for supervised time – Where no application to have supervised time – Where orders intended to operate for a short period - HELD – No appealable error
Rice and Asplund Suttor v Gundowda Pty Ltd Taylor v Barker
APPELLANT:
SCVG
RESPONDENT:
KLD
INDEPENDENT CHILDREN’S LAWYER:
Yeend & Associates
FILE NUMBER:
SYC
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 & KLD [2014] FamCAFC 42
Case
[2014] FamCAFC 42
Decision Date
CaseChat Overview and Summary
SCVG & KLD concerned an appeal against interim orders made in family law proceedings in relation to children. The father appealed against several orders made by Faulks DCJ, including those pertaining to parental responsibility, time spent with the children, and supervised visits. The primary issues were whether the Family Court judge erred in not considering equal or substantial and significant time with the children, in not giving significant weight to expert reports about the father's risk to the children, and in not ordering supervised visits. The court held that there was no appealable error in the judge's decisions. The appellate court found that the prior order for equal shared parental responsibility did not create a mandatory consideration of equal or substantial and significant time. The court also found that the primary judge did not err in not giving significant weight to the expert reports, as the father did not establish that they should have been relied upon. Lastly, the appellate court held that no appealable error occurred in the failure to order supervised visits, as no such application had been made, and the orders were intended to operate for a short period.
The appeal was dismissed, and the father was ordered to pay the mother's and the Independent Children's Lawyer's costs within one month of agreement or assessment as to quantum.
Orders
Orders of the court
1. The appeal against Order 6 of Faulks DCJ made on 4 July 2013 be dismissed.
2. Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.
3. Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the Independent Children’s Lawyer in relation to this appeal.