Wheedon and Gomer - [2014] FamCAFC 141

FAMILY COURT OF AUSTRALIA

WHEEDON & GOMER

[2014] FamCAFC 141

FAMILY LAW – APPEAL – CHILDREN – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the children and the mother be permitted to relocate with the children – where the father has a history of alcohol dependence – where the father represented himself on the appeal – where the majority of the father’s grounds of appeal were premised upon the contention that the trial judge erred in making findings that were not based on the evidence – no error demonstrated – appeal dismissed and no order as to costs.

Family Law Act 1975 (Cth)

AMS v AIF (1999) 199 CLR 160
Jarvis & Pike [2013] FamCAFC 196

APPELLANT:

Mr Wheedon

RESPONDENT:

Ms Gomer

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

BRC

8388

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

8 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Murphy and Kent JJ

HEARING DATE:

4 August 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

16 August 2013

LOWER COURT MNC:

[2013] FCCA 1703

REPRESENTATION

FOR THE APPELLANT:

In person

FOR THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr George

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox Solicitor

Orders

IT IS ORDERED ON 4 AUGUST 2014 THAT

The Appellant Father’s Application in an Appeal filed 29 May 2014 be dismissed.

IT IS FURTHER ORDERED ON 8 AUGUST 2014 THAT

Pursuant to the slip rule, the orders made in the Federal Circuit Court on 16 August 2013 be varied by adding the words “or psychologist” after the word “psychiatrist” where that word appears in paragraph 9(a)(i).
The appeal be dismissed.
There be no order as to costs of the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 50 of 2013
File Number: BRC 8388 of 2008

Mr Wheedon

Appellant

And

Ms Gomer

Respondent

REASONS FOR JUDGMENT

Mr Wheedon (“the father”) appeals against final orders made by Judge Coates in the Federal Circuit Court on 16 August 2013 after a trial of parenting proceedings concerning the children D born March 2005 and N born May 2007. The other parties to those proceedings, Ms Gomer (“the mother”) and the Independent Children’s Lawyer (“the ICL”) appointed to independently represent the children’s interests in the proceedings, oppose the appeal.
By an application in an appeal filed 29 May 2014 the father sought an order that this Court provide a transcript of the trial proceedings. An order sought in the alternative was that the Court provide a transcript “…of His Honour’s Orders made 16 August 2013.” In advance of the hearing of the appeal we determined that…

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 Wheedon and Gomer

Details

AGLC: Wheedon and Gomer [2014] FamCAFC 141
Case: [2014] FamCAFC 141
Decision Date

CaseChat Overview and Summary

Mr Wheedon appeals against final orders made by the Federal Circuit Court of Australia on 16 August 2013 following a trial of parenting proceedings concerning the children D and N. Ms Gomer, the mother, and the Independent Children’s Lawyer oppose the appeal. The central issues at trial were the parents' inability to negotiate and reach agreement on issues in the exercise of their equal shared parental responsibility, the father's alcohol dependency and its impact upon a number of inter-related issues, including his parenting capacity, the breakdown of his relationship with the children, and any risks unsupervised time with the father posed to the welfare of the children in terms of their physical, emotional and psychological wellbeing. The father’s propensity for abuse of the mother was also considered. The trial judge made orders for the mother to have sole parental responsibility for decisions regarding the long-term care, welfare and development of the children, permitting the mother to relocate with the children to the Hunter Valley in New South Wales, and providing for the father’s time with the children to progress from more limited and supervised time to more expansive and unsupervised time on conditions as to treatment by a psychiatrist and provision of "clean" urinalysis testing, each over a six month period. The father’s appeal is dismissed and no order as to costs is made.

Orders