WGOC and GH & Anor - [2016] FamCAFC 199

FAMILY COURT OF AUSTRALIA

WGOC & GH AND ANOR

[2016] FamCAFC 199

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against final parenting orders according the mother sole parental responsibility of one of the children – Where the child previously lived with the father but absconded and refused to return – Where the father refused to consent to the child attending a new school – Where the child had not attended school for a period for two years as a result – Where the father alleged the trial judge failed to consider the best interests of the child and properly apply the relevant provisions – Where it was found the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth) – Where the orders were appropriate in the circumstances – Appeal dismissed.

FAMILY LAW – COSTS – Where the appeal has failed and the father and mother are self-represented – No order as to costs.

Family Law Act 1975 (Cth) s 4, 60CC, 61DA(2), 117

Sampson & Hartnett (Provision of [2010] FamCAFC 220 Transcript) (2013) FLC 93-542

APPELLANT:

WGOC

RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11408

2009

APPEAL NUMBER:

2015

DATE DELIVERED:

14 October 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Strickland & Ryan JJ

HEARING DATE:

3 February 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 May 2015

LOWER COURT MNC:

[2015] FamCA 356

REPRESENTATION

FOR THE APPELLANT:

WGOC (in person)

FOR THE RESPONDENT:

GH (in person)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

The appellant father have leave to rely on his Amended Notice of Appeal tendered at the hearing of the appeal.
The appeal is dismissed.
Paragraph (3) of the Application in an Appeal filed 16 October 2015 is allowed and the Court dispenses with the requirement for a transcript.
No order as to costs.

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 WGOC & GH 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 r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 42 of 2015
File Number: BRC 11408 of 2009

WGOC

Appellant

And

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed with leave at the hearing of the appeal, WGOC (“the father”) appeals orders of Hogan J made 15 May 2015. The father and GH…

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

Case: [2016] FamCAFC 199
Decision Date: 14 October 2016

CaseChat Overview and Summary

In the case of WGOC and GH & Anor, the father appealed against final parenting orders which granted the mother sole parental responsibility over one of the children. The child had previously lived with the father but absconded and refused to return. The father also refused to consent to the child attending a new school, resulting in the child not attending school for two years. The father argued that the trial judge failed to consider the best interests of the child and did not properly apply the relevant provisions of the Family Law Act 1975 (Cth). The appeal was centred on whether the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth) and whether the orders were appropriate in the circumstances.

The court found that the trial judge appropriately applied the relevant provisions of the Family Law Act 1975 (Cth). The court held that the father's refusal to consent to the child attending a new school was unreasonable, particularly given that the child had not attended school for two years. The court also found that the child's absconding from the father's care was not a sufficient reason to grant sole parental responsibility to the mother. However, the court held that the trial judge's decision was appropriate in the circumstances, as the child's best interests were best served by being with the mother.

The appeal was dismissed, and the father was granted leave to rely on his Amended Notice of Appeal tendered at the hearing of the appeal. The court also allowed paragraph (3) of the Application in an Appeal filed 16 October 2015 and dispensed with the requirement for a transcript. No order as to costs was made, as both parties were self-represented and the appeal had failed.

Orders

Orders of the court

The appellant father have leave to rely on his Amended Notice of Appeal tendered at the hearing of the appeal.

The appeal is dismissed.

Paragraph (3) of the Application in an Appeal filed 16 October 2015 is allowed and the Court dispenses with the requirement for a transcript.

No order as to costs.

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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