Shaeffer v Jacobs

[2011] FamCAFC 119

FAMILY COURT OF AUSTRALIA

SHAEFFER & JACOBS [2011] FamCAFC 119

FAMILY LAW – APPEAL – CHILDREN – Whether trial judge erred in not making findings in relation to credit of the mother and the father where serious allegations of violence – Where trial judge did not need to determine the case by reference to a finding that the alleged violence had occurred or had not occurred – Where Counsel submitted trial judge had made inconsistent findings of fact - Power of an appellate Court to overturn findings of fact discussed in light of Goodrich Aerospace Pty Ltd v ARSIC [2006] NSWCA 187 – Where trial judge unable to make a conclusive finding in relation to allegations of violence to Briginshaw ­ standard – Failure to make finding on the basis of allegation of a party does not mean the party making the allegation was lying – Trial judge not obliged to find that a failure to make out a case involved of necessity the deliberate fabrication of evidence – Highlighted that resolution of an allegation of child abuse is “subservient and ancillary to the Court’s determination of what is in the best interests of the child” –Whether trial judge erred in rebutting presumption of equal shared parental responsibility – No error established – Child orders remain in force

FAMILY LAW – APPEAL – PROPERTY – Whether trial judge erred in setting aside consent property orders pursuant to s 79A on the basis that there had been a miscarriage of justice to the mother – Whether trial judge erred in the exercise of discretion under s 79 – Where mortgage debts to father’s mother and subsequently her Estate – Where at the time of the consent orders the father either knew or ought to have known that the mortgage debts were not likely to be enforced – Where appellant father contends there was a denial of natural justice on the basis that it was not put to him that the mortgages were valid and enforceable – Held facts which underpinned trial judge’s conclusion put to the father in cross examination and raised in final submissions – Not necessary for Counsel to put conclusions to the father for natural justice to be accorded – Where appellant father contends that trial judge drew inferences from events that had occurred after the making of consent orders when the time to determine whether there was a miscarriage of justice was at the time of the consent orders – Trial judge entitled to draw the inference from the evidence that at the time of the entering into the consent orders the father knew or ought to have known that the mortgage debt was not likely to have been enforced despite trial judge considering subsequent matters – No error in trial judge’s exercise of discretion

FAMILY LAW – APPEAL – Appeal dismissed

FAMILY LAW – COSTS – Order appellant pay respondents costs

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) s 75(2); s 79; s…