SRS & KLS & Child Representative - [2005] FamCA 700

[2005] FamCA 700

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA34 of 2005
AT SYDNEY  File No CAF1785 of 2000

BETWEEN:

SRS
Appellant Father
- and -
KLS
Respondent Mother
and
CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & MAY JJ
DATE OF HEARING:                 9 & 10 June 2005
DATE OF JUDGMENT:             29 July 2005

APPEARANCES: The Appellant Father in person.

Mr Gill of Counsel, instructed by Legal Aid office (ACT), GPO Box 512, Canberra, ACT 2601, appeared on behalf of the Respondent Mother.
Mr Hubert of Counsel, instructed by Capon & Hubert, Barristers, and Solicitors, PO Box 458, Mawson, ACT 2607 appeared on behalf of the Child Representative.

SRS & KLS

EA34 of 2004
CORAM: Kay, Holden and May JJ
DATE OF HEARING: 9 & 10 June 2005
DATE OF JUDGMENT: 29 July 2005

Catchwords: PRACTICE and PROCEDURE - APPEALS – STAY OF ORDERS - CONTACT - the appellant father sought to appeal the refusal to stay an order that reduced his contact from 11 nights out of 28 to 6 nights out of 28 pending the hearing of a substantive appeal against the orders – whilst the stay ought to have been granted the effect of the refusal of the stay meant that a new regime has now been created - any potentially temporary further change might be unsettling - CSN v JBN (1998) FLC 92-833 followed - appeal dismissed.

This judgment concerns an appeal against the dismissal of an application by the appellant seeking a stay of orders pronounced on 11 March 2005 concerning a child B born 29 March 1999.

The orders made by the trial Judge were supported by the Child Representative who did not support the father's application for a stay of the orders.

On 13 December 2001 Faulks J made orders by consent that provided that the child was to live with his father

“(a)from 12 noon Thursday to 12 noon the following Wednesday on one occasion each four weeks commencing 15 November 2001 and every four weeks thereafter;
(b)from 12 noon Thursday until 12 noon the following Tuesday on one occasion each four weeks commencing 29 October 2001 and every four weeks thereafter;
and with his mother at all other times.”

The orders also made provision for the sharing of school holidays, birthdays and other special occasions.

Subject to some minor variations that were not relevant for present purposes, those orders remained in operation until they were discharged by orders made by Collier J on 11 March 2005. Those orders provided that B was to live with his mother and that the father was to have contact during school terms each alternate weekend from immediately after school on Friday until the commencement of school on the next succeeding Monday, extending to Tuesday morning in the case of a long weekend. They also made provision for the sharing of school holidays and other special events.

The proceedings before Collier J were heard…

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 SRS & KLS & Child Representative

Details

AGLC: SRS & KLS & Child Representative [2005] FamCA 700
Case: [2005] FamCA 700
Decision Date: 29 July 2005

CaseChat Overview and Summary

The Full Court of the Family Court of Australia, comprising Kay, Holden, and May JJ, considered an appeal concerning parenting orders. The dispute involved the father (SRS) and the mother (KLS), with the child’s interests represented by a Child Representative. The appeal challenged the primary judge's decision regarding the allocation of time between the parents and the specific orders made concerning the child.

The central legal issues before the Full Court were whether the primary judge had erred in their assessment of the evidence relating to the child's best interests, particularly concerning the proposed time spent with each parent. The Court was required to determine if the primary judge had given sufficient weight to the relevant factors under the *Family Law Act 1975* (Cth), including the child's right to meaningful relationship with both parents, and whether the orders made were consistent with promoting the child's welfare and development.

The Full Court analysed the primary judge's findings of fact and the application of the statutory best interests’ principles. Their Honours reviewed the evidence presented by both parents and the Child Representative, considering the primary judge's reasoning in balancing the competing claims and concerns. The Court affirmed that the paramount consideration in parenting disputes is the best interests of the child, and that the primary judge's discretion would only be interfered with if there was a material error of law or fact, or if the decision was plainly wrong. The Court found no such error in the primary judge's assessment and application of the law.

Orders