Vallans & Vallans

Case [2019] FamCAFC 260

FAMILY COURT OF AUSTRALIA

VALLANS & VALLANS [2019] FamCAFC 260
FAMILY LAW – APPEAL – PARENTING – Where the parties entered into final consent orders in January 2015 providing for, relevantly, equal shared parental responsibility – Where, in the course of a contravention application, the mother made an oral application for setting that order aside – Where the trial judge set that order aside and made an order providing for the mother to have sole parental responsibility – Where the trial judge rejected the mother’s claims of family violence – Where the trial judge was otherwise satisfied that it was not in the children’s best interests for the presumption in s 61DA(1) to apply – Where the trial judge relied heavily on a family report which was two years old at the time of trial – Where the trial judge’s finding as to the rebuttal of the presumption was based largely on the parties’ alleged communication difficulties – Where there must be convincing proof as to the children’s best interests for s 61DA(4) to be activated to rebut the presumption – Where the trial judge failed to consider material considerations raised in the family report and which had occurred subsequent to its preparation – Where there is no sufficient evidentiary basis to rebut the statutory presumption ins 61DA(1) – Where the trial judge failed to consider each relevant factor under s 60CC – Appeal allowed – Proceedings remitted – Costs certificates granted.
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 62G, 64B, 65DAC, 70NBA, 94AAA(3)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Blaze v Grady [2015] 54 Fam LR 172; [2015] FamCA 1064
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Doherty & Doherty [2016] FamCAFC 182
Dundas & Blake (2013) FLC 93-552; [2013] FamCAFC 133
In the Marriage of Scott (1994) 17 Fam LR 420; [1994] FamCA 12
Irvin and Carr (2007) FLC 93-322; [2007] FamCA 492
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sandler and Kerrington (2007) FLC 93-323; [2007] FamCA 479
APPELLANT: Mr Vallans
RESPONDENT: Ms Vallans
FILE NUMBER: BRC 7407 of 2013
APPEAL NUMBER: NOA 118 of 2018
DATE DELIVERED: 20 December 2019
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 21 May 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 22 November 2018
LOWER COURT MNC: [2018] FCCA 3841

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Ehlers
SOLICITOR FOR THE APPELLANT: Steindl Bradley & Associates
COUNSEL FOR THE RESPONDENT: Ms M Cullen
SOLICITOR FOR THE RESPONDENT: Callaghan Legal

Orders

  1. The appeal be allowed.

  2. The Orders of the trial judge made in the Federal Circuit Court of Australia on 22 November 2018 be…

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AGLC
Vallans & Vallans [2019] FamCAFC 260
Case
[2019] FamCAFC 260
Decision Date

CaseChat Overview and Summary

In the matter of Vallans & Vallans, the father appealed the parenting orders made by the Federal Circuit Court of Australia, arguing that the trial judge erred in various respects concerning the determination of parental responsibility and the best interests of the children. The central contention was that the evidence was insufficient to rebut the statutory presumption of equal shared parental responsibility. The father also argued that the trial judge gave undue weight to past conflict, perceived stress of the mother, and insufficient weight to his affidavit. Additionally, he contended that the trial judge failed to adequately address all relevant factors under section 60CC of the Family Law Act 1975 and provide sufficient reasons for his decision.

The court was required to decide whether the trial judge correctly applied the law in rebutting the presumption of equal shared parental responsibility, appropriately weighed the evidence, and adequately addressed the statutory factors in determining the children’s best interests. It was also necessary to assess whether the trial judge’s reasons were sufficient to understand the pathway to his decision.

The court found that the trial judge erred in several respects. It was determined that the evidence did not sufficiently support the conclusion that rebutting the presumption of equal shared parental responsibility was in the best interests of the children. The court also found that the trial judge gave undue weight to past conflict and insufficient weight to the father's affidavit. Furthermore, the trial judge failed to adequately address all relevant section 60CC factors and provide sufficient reasons for his decision. Consequently, the appeal was allowed, the orders of the trial judge were set aside, and the matter was remitted for rehearing by a different judge. Additionally, costs certificates were granted to both parties.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The Orders of the trial judge made in the Federal Circuit Court of Australia on 22 November 2018 be set aside.

3.

The oral application of the Respondent Mother to vary the parenting orders made by consent on 22 January 2015 in respect of the allocation of parental responsibility for the children the subject of these proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a Judge other than the trial judge.

4.

The Court grants to the Appellant Father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Father in respect of the costs incurred by the Appellant Father in relation to the appeal.

5.

The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.

6.

The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.

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

By an Amended Notice of Appeal filed on 3 April 2019 the father abandoned his previous Ground 5. The remaining seven grounds in the Amended Notice of Appeal are as follows:1.The learned trial judge was wrong in law in holding that the presumption of equal shared parental responsibility pursuant to section 61DA(1) Family Law Act 1975 (Cth) (“the Act”) was rebutted by evidence that it would not be in the best interests of the children for the said presumption to apply pursuant to section 61DA(4) of the Act.2.The learned trial judge erred in law by affording undue weight to the level of past conflict between the parents and insufficient weight to the current level of conflict between the parents.3.The learned trial judge erred in law by affording undue weight to the perceived stress of the mother in communications between the mother and father.4.The learned trial judge erred in law by affording insufficient weight to the trial affidavit filed 13/11/18 of the father in circumstances where the father was not cross examined, at all, in respect of that evidence.6.The learned trial judge erred in law and ought to have found that the mother had not established a basis upon which the orders of 27 January 2015 be discharged, varied or set aside.7.The learned trial judge erred in law by failing to provide sufficient reasons for his Honour’s ‘findings’ and the Orders made such that insufficient reasons are provided such that the pathway to the learned trial judge’s decision was not apparent.8.The learned trial judge erred in law by failing to address all the relevant section 60CC factors in the Act in deciding whether to make a parenting order pursuant to section 60CA of the Act in regarding the best interests of the children as the paramount consideration.(As per the original) The challenges as to the weight given to evidence expressed in each of Grounds 2, 3 and 4 can reasonably be viewed as particulars, or sub-categories, of the central contention in Ground 1 that, in summary, the evidence as a whole was insufficient for it to be concluded that it was in the children’s best interests for the statutory presumption to be rebutted. Ground 6, as advanced in oral argument, was framed also as a contention that the trial judge failed to deal with a threshold Rice and Asplund (1979) FLC 90-725 question as to whether variation of the orders ought be entertained. Ground 8 is self-evidently a challenge to the effect that the trial judge did not “address” all relevant s 60CC factors in determining the children’s best interests. The challenge as to adequacy of reasons in Ground 7 permeates these other challenges. At [11] and [12] of the reasons for judgment the trial judge said this:11.The objects and principles underlying part VII are set out in section 60B. Relevantly, under the objects, section 60B(1)(d) an object is:Ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.12.One of the relevant principles underlying that object is found at section 60B(2)(d). That is:Parents should agree about the future parenting of their children.

Ratio Decidendi

Legal Principle Established

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