FAMILY LAW – APPEAL – FINAL PARENTING – whether the child should be moved from the primary care of his mother to the primary care of his father – where the child had always lived with the mother following the parties’ separation – where the trial judge ordered that the child live with the father and spend time with the mother – where the trial judge made an order for equal shared parental responsibility – where s 65DAA of the Family Law Act 1975 (Cth) was engaged – whether the trial judge considered making an order for equal time or substantial and significant time – where the central issue raised by the mother on appeal is not reflected by her case at trial – Metwally v University of Wollongong (1985) 60 ALR 68 considered – where it is “expedient and in the interests of justice” that the issues be dealt with – whether the trial judge’s orders included substantial and significant time – consideration of what is meant by “days that do not fall on weekends and holidays” and “daily routine” as contained in s 65DAA(3) and (4) – Ulster & Viney (2016) FLC 93-722 considered – where insight into the objects and purpose of s 65DAA can be seen by reference to the Explanatory Memorandum of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) – whether the ordinary and natural meaning of “days that do not fall on weekends and holidays” and “daily routine” permits a conclusion that a few hours on a school-week Friday evening constitutes substantial and significant time within the meaning of s 65DAA – whether the trial judge failed to consider s 65DAA – where the trial judge did not expressly refer to the mandatory requirements in s 65DAA – meaning of “consider” – Goode and Goode (2006) FLC 93-286 considered – where the circumstances of the case and the overt manifestations of what has been “considered” will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial – where it could safely be inferred from the totality of the matters that the trial judge considered, but rejected, an order for either equal time or substantial and significant time – whether the trial judge failed to afford the mother procedural fairness in drawing an adverse inference from the mother’s failure to call her psychologist – where the trial judge made findings based on the evidence as a whole and not from the mother’s failure to call her psychologist – no error demonstrated – appeal dismissed.
Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB(1)(b)(i), 15AB(2)(e) Family Law Act 1975 (Cth) ss 60B, 60CC, 65D, 65DAA, 97(3), 117(1), 117(2), 117(2A), 117(4)(a), Div 12A
Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) ss 8, 31
[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
Tibb & Sheean [2018] FamCAFC 142
Case
[2018] FamCAFC 142
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, the case of Tibb & Sheean involved a dispute regarding the primary care of a child following the separation of the parents. The mother appealed a decision of the trial judge who ordered that the child live with the father and spend time with the mother, while also making an order for equal shared parental responsibility. The mother argued that the trial judge failed to consider certain mandatory requirements under section 65DAA of the Family Law Act 1975 (Cth), and that she was not afforded procedural fairness due to her failure to call her psychologist as a witness. The mother sought to have the trial judge’s orders set aside and replaced with orders that the child live with her and spend time with the father.
The court considered whether the trial judge adequately addressed the mandatory requirements in section 65DAA, which includes ensuring that a child spends substantial and significant time with both parents. The court examined the meaning of "days that do not fall on weekends and holidays" and "daily routine" within the context of section 65DAA. The court also assessed whether the trial judge’s failure to expressly refer to section 65DAA constituted an error and whether the trial judge afforded procedural fairness to the mother by drawing an adverse inference from her failure to call her psychologist.
The court found that the trial judge had considered the requirements of section 65DAA, albeit not expressly, and had rejected proposals for equal time or substantial and significant time based on the totality of the evidence. The court held that the trial judge’s findings were based on the evidence as a whole and not solely on the mother’s failure to call her psychologist. Consequently, the court determined that no error was demonstrated in the trial judge’s consideration of section 65DAA or in the procedural fairness afforded to the mother. The appeal was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
Each party to the appeal shall bear their own costs of and incidental to the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.