FAMILY COURT OF AUSTRALIA
| SHAN & PRASAD | [2018] FamCAFC 12 |
| FAMILY LAW – APPEAL – PARENTING – Family Violence – While spending time with the children the husband removed the children from Australia without the wife’s knowledge – Whether an order for the children to spend no time with the husband was contrary to their best interests – Whether the primary judge failed to consider supervised time – No error established – Order made permitting wife to relocate the children internationally without notice to the husband – Where the wife did not propose to live abroad - Appeal against parenting orders allowed in part. FAMILY LAW – APPEAL – EVIDENCE – Admission of evidence – Where the single expert witness is provided with information rejected at trial – Whether the inadmissible evidence tainted the single expert witness’s opinion – Where the evidence of the single expert witness given significant weight – Where single expert witness conducted joint interviews with witnesses and non-witnesses – Whether joint interview affected reliability of evidence – Not established that the inadmissible information affected the outcome. FAMILY LAW – APPEAL – SPOUSAL MAINTENANCE – Where the evidence in the wife’s financial circumstances was not reliable – Capacity of husband to pay spousal maintenance – Inconsistent findings – Appeal against spousal maintenance orders allowed. FAMILY LAW – APPEAL – INJUNCTIONS – Injunction made in aid of a property order – Injunction from leaving Australia – Where the primary judge failed to balance the utility of the order against the possible detriment to the husband – Appeal against injunctions allowed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where evidence of a similar nature was before the primary judge – Where the evidence would not have affected the outcome of the hearing – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where both parties partly successful – Where the appeal raised matters of substance – Application for costs of the wife and ICL dismissed – Costs certificates given. |
| Evidence Act 1995 (Cth) s 9 Family Law Act 1975 (Cth) ss 60B, 60CC, 69ZT, 72, 74, 75, 79, 114 |
| Amador & Amador (2009) 43 Fam LR 268 CDJ v VAJ (1998) 197 CLR 172 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93‑143 Kennon v Spry (2008) 238 CLR 366 Khalil & Tahir-Ahmadi (2012) FLC 93-506 Kowaliw and Kowaliw (1981) FLC 91-092 Monte & Monte (1986) FLC 91-757 |
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- AGLC
- Shan & Prasad [2018] FamCAFC 12
- Case
- [2018] FamCAFC 12
- Decision Date
CaseChat Overview and Summary
The appeal raised several issues, including whether the primary judge erred in making orders contrary to the children's best interests, by not considering supervised time with the husband. The appeal also questioned whether the primary judge erred by admitting evidence that was inadmissible and by not considering the impact of capital gains tax on the sale of investment property. Furthermore, the appeal raised issues about the reliability of the evidence of the single expert witness, who was provided with inadmissible information and conducted joint interviews. The appeal also questioned whether the primary judge erred by making orders for spousal maintenance and injunctions without sufficient evidence of the wife’s financial circumstances and without balancing the utility of the order against the possible detriment to the husband.
The appeal was allowed in part. The court found no error in the primary judge’s consideration of the children’s best interests or in the admission of evidence, even though the single expert witness was provided with inadmissible information and conducted joint interviews. The court found error in the primary judge’s formulation of the property pool, by including notional property and failing to consider the impact of capital gains tax on the sale of investment property. The court also found error in the primary judge’s consideration of spousal maintenance and injunctions, due to insufficient evidence and failure to balance the utility of the order against the possible detriment to the husband. The appeal against the costs order was dismissed, but costs certificates were granted to both parties for the rehearing.
The application by the husband to adduce further evidence in the appeal was dismissed, as the evidence was of a similar nature to that before the primary judge and would not have affected the outcome of the hearing. The appeal was allowed in part, and several orders were set aside or varied, including those regarding the children's residence and time with the parents, the property pool, spousal maintenance, and injunctions. The proceedings for property settlement, spousal maintenance, and injunctions were remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Altobelli. The wife’s application for costs was dismissed, as was the application for costs by the ICL. However, costs certificates were granted to both parties for the rehearing.
Orders
Orders of the court
1.
The application by the husband to adduce further evidence in the appeal be dismissed.
2.
The appeal be allowed in part.
3.
Orders 18, 19, 20, 28, 29 and 30 be set aside.
4.
Order 4 be varied by deleting the words “or outside”.
5.
Order 6 be varied by deleting the words “until they each attain the age of 18 years.”
6.
Order 13 be varied so that it provides “That the father be restrained from attending upon any school or other educational facility attended by the children”.
7.
The proceedings for property settlement, spousal maintenance and injunctions be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Altobelli.
8.
The wife’s application for costs be dismissed.
9.
The application for costs by the Independent Children’s Lawyer be dismissed.
10.
The court grants to the husband a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the husband in respect of the costs incurred by him in relation to the rehearing.
11.
The court grants to the wife a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the wife in respect of the costs incurred by her in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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