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Simmons & Kingley

Simmons & Kingley

Case [2014] FamCAFC 47

Best Interests of the Child

Parental Responsibility

Alcohol Abuse

Unacceptable Risk

Expert Evidence

Monitoring Mechanisms

Orders and Undertakings

Family Law

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FAMILY COURT OF AUSTRALIA

SIMMONS AND ANOR & KINGLEY

[2014] FamCAFC 47

FAMILY LAW – APPEAL – CHILDREN – where the maternal aunt and uncle appeal against final parenting orders that the child reside with the father – where the appellants’ central complaints relate to the trial judge’s finding that the child would not be at unacceptable risk in the care of the father – whether error demonstrated by the trial judge not referring to any “unacceptable risk” authorities – whether the trial judge failed to identify the specific risk and to assess that risk – whether the trial judge was bound to accept and act upon evidence of single expert psychiatrist – whether error demonstrated because the trial judge failed to give sufficient weight to the evidence of expert psychiatrist – whether the trial judge failed to give adequate reasons as a consequence – where findings made were open to the trial judge on the evidence, including the expert evidence – where the trial judge’s reasons are careful and extensive – no merit found in the grounds of appeal.

Family Law Act 1975 (Cth)

Andrew & Delaine [2009] FamCAFC 182
Bennett & Bennett (1991) FLC 92-191
D & P [2006] FamCA 170
Friscioni & Friscioni [2010] FamCAFC 108
Gaffney & Gaffney [2012] FamCAFC 140
Gelbvieh & Senepol [2007] FamCA 476
Hall and Hall (1979) FLC 90-713
Hannigan & Sorraw [2010] FamCAFC 257
Kennedy & Kennedy [2010] FamCAFC 195
Lindsay & Baker [2012] FamCAFC 189
Malak & Mairie [2010] FamCAFC 170
Muldoon & Carlyle (2012) FLC 93-513
Penfold v Penfold (1980) 144 CLR 311
Salvati & Donato [2010] FamCAFC 263
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Yates & Yates [2012] FamCAFC 138

FIRST APPELLANT:

Mrs Simmons

SECOND APPELLANT:

Mr Simmons

RESPONDENT:

Mr Kingley

INDEPENDENT CHILDREN’S LAWYER:

Clare Dart

FILE NUMBER:

BRC

1363

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Strickland & Kent JJ

HEARING DATE:

20 February 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:	24 July 2013
LOWER COURT DATE OF ORDERS:	5 July 2013

LOWER COURT MNC:

[2013] FamCA 546

REPRESENTATION

COUNSEL FOR THE FIRSTAPPELLANT:

Mr Baston

SOLICITOR FOR THE FIRSTAPPELLANT:

Kelly Lawyers

COUNSEL FOR THE SECOND APPELLANT:

Mr Baston

SOLICITOR FOR THE SECOND APPELLANT:

Kelly Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Middleton

SOLICITOR FOR THE RESPONDENT:

Carroll Fairon Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Simmons and Anor & Kingley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE…

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.

Continue reading Simmons & Kingley

Details

AGLC: Simmons & Kingley [2014] FamCAFC 47
Case: [2014] FamCAFC 47
Decision Date

CaseChat Overview and Summary

In this appeal, Mrs Simmons and her husband, Mr Simmons, appeal against final parenting orders made by Hogan J in the Family Court of Australia concerning their niece, C Arndale-Kingley. The central issue in the trial was the father's history of alcohol abuse and dependence and related conduct. The appellants contended at trial that the father remained at such risk of abusing alcohol that the child would be at risk in his care. The trial judge concluded that the father had over the three years prior to trial demonstrated control of his alcohol problem and that with continuation of his undertaking not to consume any alcohol while the child is in his care or for twenty-four (24) hours prior to such time, and the imposition of monitoring mechanisms in the orders, there was no unacceptable risk to the child in her father's care. The appellants appeal against the parenting orders made by the trial judge. The appeal raises issues concerning the trial judge's identification and assessment of the relevant risk, the weight given to the evidence of Dr L, psychiatrist, and the adequacy of the trial judge's reasons. The Full Court finds no merit in any of the grounds pursued by the appellants. The appeal is dismissed. There will be no order as to costs.

Orders