SCVG v KLD - [2014] HCASL 168

SCVG
v
KLD & ANOR
[2014] HCASL 168
S88/2014

The applicant and first respondent are the parents of two children. Since their separation in January 2005, their children have lived with the first respondent and regularly spent time with the applicant pursuant to parenting orders made under the Family Law Act 1975 (Cth). On 15 February 2013, the first respondent sought interim orders suspending those parenting orders on the basis of the applicant's recent arrest for certain offences.
On 4 July 2013, the Family Court of Australia (Faulks Deputy CJ) made the interim orders sought by the first respondent by reference to the best interests of the children under s 60CC of the Act. His Honour considered that the possible benefit to the children in spending time with the applicant did not outweigh the importance of other factors, including that the children might suffer psychological harm. His Honour also doubted the applicant's capacity to control his behaviour when the children were with him.
On 24 March 2014, the Full Court of the Family Court of Australia (Ainslie‑Wallace, Ryan and Stevenson JJ) dismissed the applicant's appeal. The applicant's principal complaint was that Faulks Deputy CJ had erred in failing to give proper weight to the presumption of equal shared parental responsibility under s 61DA of the Act, and equal shared time under s 65DAA. The Full Court held that, although Faulks Deputy CJ did not expressly mention ss 61DA or 65DAA of the Act in his Honour's ex tempore reasons for judgment, it was tolerably clear that his Honour considered those sections in the context of considering the best interests of the children under s 60CC of the Act.
The applicant seeks special leave to appeal to this Court. No question of principle falls for determination in this application which involves interim orders made pending final hearing. The interests of justice do not require the grant of special leave. Special leave should be refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

S.M. Kiefel
11 September 2014 P.A. Keane

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

Case: [2014] HCASL 168
Decision Date

CaseChat Overview and Summary

The case involves the applicant, SCVG, and the first respondent, KLD, who are the parents of two children. The dispute centres on the interim parenting orders made under the Family Law Act 1975 (Cth) which suspended the applicant’s access to the children following his arrest for certain offences. The first respondent sought the suspension based on concerns about the children’s welfare. The Family Court of Australia, presided by Faulks Deputy CJ, granted the interim orders on 4 July 2013, considering the best interests of the children under s 60CC of the Act. This decision was upheld by the Full Court of the Family Court of Australia on 24 March 2014.

The legal issues before the court included whether the Family Court properly considered the presumption of equal shared parental responsibility and equal shared time, as outlined in ss 61DA and 65DAA of the Act. The applicant argued that the Family Court did not give adequate weight to these sections when making the interim orders. However, the Full Court determined that, although not explicitly mentioned, the Family Court’s reasoning implicitly considered these statutory provisions within the context of the children’s best interests.

The court held that the Full Court's decision to dismiss the appeal was correct. The court found no error in the Family Court's consideration of the statutory presumptions and concluded that the interests of justice did not warrant special leave to appeal. Consequently, the application for special leave to appeal to the High Court was refused. The court directed that the Registrar should prepare an order dismissing the application.

The final orders reflect the court's decision to dismiss the applicant's special leave application, thereby upholding the interim orders that were initially made by the Family Court of Australia.

Orders