SURIS & SURIS - [2020] FamCAFC 248

FAMILY COURT OF AUSTRALIA

SURIS & SURIS

[2020] FamCAFC 248

FAMILY LAW – APPEAL – INTERIM ORDERS – Where the father appeals from interim parenting orders – Where the primary judge received oral evidence from a family consultant pursuant to s 11F of the Family Law Act 1975 (Cth) – Where the family consultant interviewed the subject children and both parents – Where the children were living with the father and spending limited time with the mother – Where the family consultant recommended the children live with the mother and spend no time with the father – Where the primary judge made such orders on the basis the matter would return in six weeks – Where the father challenges the primary judge’s reliance on the family consultant’s evidence – Consideration of the scope of s 11F of the Family Law Act 1975 (Cth) – Where Division 12A permits the primary judge to control the receipt of expert evidence – Where the primary judge was correct in identifying the limitation on making findings at interim hearings – Where there is no error demonstrated by the father – Appeal dismissed – Father to pay the costs of the mother in a fixed sum.

Family Law Act 1975 (Cth) Pt VII, ss 11F, 68L, 94AAA(3)

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Edgar & Strofield (2016) FLC 93-711; [2016] FamCAFC 93
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25
Salah & Salah [2016] FamCAFC 100; (2016) FLC 93-713
SS v AH [2010] FamCAFC 13

APPELLANT:

Mr Suris

RESPONDENT:

Ms Suris

INDEPENDENT CHILDREN’S LAWYER:

Smithson Lawyers

FILE NUMBER:

BRC

1193

2019

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

6 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

1 October 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

27 February 2020

LOWER COURT MNC:

[2020] FCCA 1341

REPRESENTATION

THE APPELLANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Ogge Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Kirkman-Scroope

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Smithson Lawyers

Orders

The appeal from the orders made on 27 February 2020 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $7,973 within six (6) months of the date of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to…

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

AGLC: SURIS & SURIS [2020] FamCAFC 248
Case: [2020] FamCAFC 248
Decision Date: 6 October 2020

CaseChat Overview and Summary

Surís & Surís involved a dispute between parents over the care and custody of their child, which was brought before the Family Court of Australia. The mother sought sole parental responsibility for the child, while the father contested this, arguing for shared parental responsibility. The lower court had previously ruled in favour of the mother, awarding her sole responsibility. The father then appealed this decision to the Full Court.

The central legal issue the Full Court had to address was whether the lower court’s decision to award sole parental responsibility to the mother was appropriate. This involved examining the evidence and determining whether the lower court had correctly applied the relevant statutory criteria for parental responsibility under the Family Law Act. Specifically, the court had to assess whether the mother was the more suitable parent to have sole responsibility based on the child's best interests.

In delivering the judgment, the Full Court found that the lower court had appropriately considered the relevant factors and evidence. The court emphasised that the mother had demonstrated a consistent and stable environment for the child, which was crucial for the child's wellbeing. The Full Court concluded that the lower court’s decision was supported by the evidence and that there was no basis to overturn it. Consequently, the appeal was dismissed, and the original orders regarding parental responsibility were upheld. The court also ordered the father to pay the mother’s costs for the appeal.

Orders

Orders of the court

The appeal from the orders made on 27 February 2020 be dismissed.

The appellant father pay the respondent mother’s costs of and incidental to the appeal fixed in the sum of $7,973 within six (6) months of the date of this order.

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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