Vance & Vance - [2010] FamCAFC 250

FAMILY COURT OF AUSTRALIA

VANCE & VANCE

[2010] FamCAFC 250

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in failing to properly apply s 65 DAA of the Family Law Act 1975 (Cth) – Whether the orders made by the Federal Magistrate achieved substantial and significant time – Consideration of the meaning of “substantial and significant time” – Reference made to s 15AA of the Acts Interpretation Act 1901 (Cth) and the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 – Decisions in Whisler & Whisler [2010] FamCAFC 18 and Eddington & Eddington(No 2) (2007) FLC 93-349 considered and applied – Where each case must be considered on its own circumstances – Where the orders fell within definition of “significant and substantial time” for the purpose of s 65 DAA(3) – No error in Federal Magistrates discretion established.

FAMILY LAW - APPEAL – PROCEDURAL FAIRNESS – Whether the Federal Magistrate denied the father procedural fairness by taking into account academic publications without notice to the father – Where the Federal Magistrate did not use material as evidence before him – Discussion of the benefits of providing research material to the parties at the commencement of the hearing – No appealable error established.

FAMILY LAW - APPEAL - PARENTING ORDERS – Whether the Federal Magistrate erred in failing to take into account the first family report – Where second family report was considered the relevant report – Where inference can be drawn that both counsel thought the first family report to be of little utility – No appealable error established.

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in making findings of fact based on the Family Consultant’s evidence on overnight time on Wednesdays – Where evidence of Family Consultant was not the sole determinant of the outcome – No factual error made – Ground without merit.

FAMILY LAW - APPEAL – COSTS – Father unsuccessful in all grounds agitated on appeal – Father to pay mother’s costs of and incidental to the appeal.

De Winter & De Winter (1979) 23 ALR 211
Eddington & Eddington (No 2) (2007) FLC 93-349
Hall & Hall (1979) FLC 93-713
MRR v GR (2010) 240 CLR 461; (2010) FLC 93-424
Whisler & Whisler [2010] FamCAFC 18

Acts Interpretation Act 1901 (Cth) s 15AA
Family Law Act 1975 (Cth) ss 60CC, 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
National Measurement Act 1960 (Cth)

APPELLANT:

Mr Vance

RESPONDENT:

Ms Vance

FILE NUMBER:

SYC

4679

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

20 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

12 October 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

5 March 2010

LOWER COURT MNC:

[2010] FMCAfam 200

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Bateman

SOLICITOR FOR THE APPELLANT:

John Hunter Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Jackson

Orders

BY CONSENT

The appeal…

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 Vance & Vance

Details

AGLC: Vance & Vance [2010] FamCAFC 250
Case: [2010] FamCAFC 250
Decision Date: 20 December 2010

CaseChat Overview and Summary

The appeal in Vance & Vance involved a dispute over parenting orders made by a Federal Magistrate. The father appealed the decision, arguing several grounds of error, including the Federal Magistrate's interpretation of "substantial and significant time," the consideration of academic publications, the failure to consider the first family report, and the reliance on Family Consultant evidence. The court was tasked with determining whether the Federal Magistrate erred in these respects, and if so, whether the errors warranted a change in the parenting orders.

The court first considered whether the Federal Magistrate properly applied the statutory provision regarding "substantial and significant time" under section 65 DAA of the Family Law Act 1975 (Cth). The court examined the meaning of this term and noted that the definition was to be applied according to the circumstances of each case. The court found that the orders made by the Federal Magistrate did fall within the definition of "substantial and significant time," and thus, there was no error in the Magistrate's discretion. Similarly, the court found no procedural unfairness in the consideration of academic publications without prior notice, as the material was not used as evidence. Additionally, the court held that the failure to consider the first family report did not constitute an appealable error, given the circumstances. The father's argument regarding the reliance on Family Consultant evidence was also dismissed as there was no factual error made.

The appeal was allowed in part, with the parenting orders being varied to correct specific details in the timing and logistics of the children's time with each parent. The father was ordered to pay the mother's costs of and incidental to the appeal, as he was unsuccessful in all the grounds argued.

Orders

Orders of the court

BY CONSENT

The appeal is allowed in part.

The orders made by Federal Magistrate Altobelli on 5 March 2010 be varied as follows:

(a) by deleting from Order 5(h) where appearing “10.00pm” and inserting in lieu “10.00am”;

(b) by deleting from Order 5(i) “10.00pm” and inserting in lieu “10.00am”;

(d) by deleting from Order 7 where appearing “Order 3(a) to (e)” and inserting in lieu “Order 4(a) to (e)” and deleting “Order 4(a) to (j)” and inserting in lieu “Order 5(a) to (i)”;

(e) by deleting from Order 8 where appearing the words “and returning the Children to the Mother’s residence” and inserting in lieu “the children from the mother’s residence at the commencement of the time that the children spend with the Father and the Mother collecting the children from the Father’s residence at the cessation of time that the children spend with the Father”; and

(f) by adding to Order 9 the following words “such telephone contact to commence on the day of the making of these orders”.

IT IS ORDERED

The father pay the mother’s costs of and incidental to the appeal.

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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