SCVG & KLD

Case [2011] FamCAFC 100

FAMILY COURT OF AUSTRALIA

SCVG & KLD [2011] FamCAFC 100

FAMILY LAW - APPEAL – Against the orders of a Federal Magistrate in parenting proceedings – Error in law – Where the Federal Magistrate made findings of fact by reference to the provisions of s 60CC before directing his attention to s 65DAA considerations – Whether in so doing the learned Federal Magistrate impermissibly precluded a proper consideration of s 65DAA – Whether the learned Federal Magistrate impermissibly departed from the “process or pathway” which the High Court in MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424 said the legislation imposed – Whether his Honour therefore made orders which were beyond power – Not established that anything in the High Court’s decision in MRR rendered erroneous the learned Federal Magistrate’s approach to the determination of the proceedings before him – No error established.

FAMILY LAW - APPEAL – Procedural fairness – Not established that the learned Federal Magistrate impermissibly relied upon his observations of the father during his cross-examination, nor that his Honour was obliged to raise the issue with the parties during final addresses – Not established that the Federal Magistrate denied the father natural justice by making orders, the specifics of which had not been discussed with the parties.

FAMILY LAW - APPEAL – Procedural fairness – Whilst it would have been preferable for the learned Federal Magistrate not to have referred to academic writings or materials which were not raised with the parties and in respect of which the parties did not have an opportunity to make submissions, it has not been established that any material finding of fact made by the learned Federal Magistrate, or conclusion reached by him, was reliant upon any of that material.

FAMILY LAW - APPEAL – Expert evidence – Not established that the Federal Magistrate impermissibly accepted any part of the expert opinion evidence.

FAMILY LAW - APPEAL – Evidence – Not established that the Federal Magistrate erred in any findings of fact – Not established that the Federal Magistrate failed to take into account any relevant matters or gave inadequate weight to relevant matters.

FAMILY LAW - APPEAL – Adequacy of Reasons – Not established that the Federal Magistrate failed to give adequate reasons for the findings and conclusions made by him.

Abalos v Australian Postal Commission (1990) 171 CLR 167
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186
Guthrie & Guthrie (1995) FLC 92-647, 82,551-2
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424; (2010) 42 Fam LR 531; (2010) 263 ALR 368

Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588
SSHontestroom v SS Sagaporack [1927] A.C. 37

Zantiotis (1993) FLC 92-367; (1993) 16 Fam LR 418
Family Law Act 1975 (Cth) – s 60CC,…

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AGLC
SCVG & KLD [2011] FamCAFC 100
Case
[2011] FamCAFC 100
Decision Date

CaseChat Overview and Summary

In the case of SCVG & KLD, the father appealed against the orders made by a Federal Magistrate in parenting proceedings involving his two children. The father contended that the Federal Magistrate had erred in law by considering the statutory provisions of s 60CC before s 65DAA, thereby prejudicing the proper consideration of s 65DAA. The father also argued that the Federal Magistrate's reliance on academic writings, observations of the father during cross-examination, and failure to discuss certain orders with the parties amounted to procedural unfairness and a denial of natural justice. The father further submitted that the Federal Magistrate erred in his acceptance of expert opinion evidence, findings of fact, and in providing adequate reasons for his determinations.

The court examined the arguments and found that the Federal Magistrate did not make an error in law by considering s 60CC before s 65DAA, as it was not established that this approach rendered the orders beyond power. The court held that the Federal Magistrate did not impermissibly rely on his observations of the father during cross-examination or deny procedural fairness by making orders without discussing them with the parties. The court also found that the Federal Magistrate did not impermissibly accept any part of the expert opinion evidence or err in his findings of fact. The court held that the reasons provided by the Federal Magistrate were adequate for the findings and conclusions made.

The court dismissed the father's appeal and ordered the father to pay the mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis.

Orders

Orders of the court

1.

That the appeal be dismissed.

2.

That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Ground 8 provided:8.That his Honour failed to give adequate reasons:8.1for his determination that he would place no weight whatsoever on any views expressed by the children (including necessarily those expressed to the appellant and [Ms M]) in circumstances where the reasons advanced rested substantially upon the influence he was satisfied was exerted by the respondent but devoid of reason in respect of statements expressing desire to live with the appellant when absent of the respondent's influence;8.2for his conclusions that the respondent will become more inclusive in her decision making in the future and that she will learn from the litigation in terms of accountability for her own parental responsibility when the holding of such belief stands in clear and direct contrast to many of his other findings, and, with such finding about inclusivity being contrary to the weight of the evidence; 8.3 his consideration of matters relevant to Section 65 DAA As Senior Counsel for the father submitted, the learned Federal Magistrate’s reasons in relation to the children’s wishes were first mentioned at para 63 of his Reasons for Judgment, and were articulated in the following terms:63.… The language I will use to describe the mother’s influence of the children will be far less diplomatic than the language used by the expert. Indeed her influence over the children is such that, together with their age, developmental stage, and the existence of such a high degree of conflict between the parents, I can place no weight whatsoever on whatever the children may have said by way of expression of relevant views. His Honour revisited that topic under the heading “Views of the children” at paragraph 122, where he said:122.Whilst there is evidence before me about the views of the children I place no weight on this evidence. This is partly because of the children’s maturity and level of understanding, but primarily because it is clear to me that the children have been at least indirectly, and probably directly at times, exposed to the very intense conflict that exists between their parents, and there is a real risk that this has influenced their views. At the very least the children must have an awareness of this parental conflict, and an appreciation of the existence of court proceedings. They have seen Associate Professor [Q] several times. They must be conscious of their mother’s absence from home to attend court and with her legal advisors. It is quite likely that their awareness is much more acute than this. In these circumstances placing any weight on views is fraught with difficulty. This is not a determinative consideration. In our view, his Honour adequately revealed the reasons why he gave no weight to the views of the children. As the passages to which we have referred confirm, there having been no clear evidence of wishes which could safely be relied upon, nothing could turn on any perceived inadequacies in the learned Federal Magistrate’s conclusions that they should be given no weight.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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