WHISLER & WHISLER - [2010] FamCAFC 18

FAMILY COURT OF AUSTRALIA

WHISLER & WHISLER

[2010] FamCAFC 18

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal against parenting and property orders – Challenge to property orders hinged upon the appeal against the parenting orders – Parties conceded that the spousal maintenance order ought be set aside
FAMILY LAW - CHALLENGE IN RELATION TO “EQUAL TIME” – Appellant challenged the parenting orders on the grounds that the Federal Magistrate failed to properly consider equal time, failed to order equal time when such an order should have been made and failed to give adequate reasons in respect of the decision as to equal time – A week about arrangement was considered by the Federal Magistrate and adequate reasons given for its rejection – Appellant submitted that the Federal Magistrate ought consider the concept of “equal time” not just a week about arrangement – No alternative proposals achieving “equal time” were proposed by either party
FAMILY LAW - CHALLENGE IN RELATION TO “SUBSTANTIAL AND SIGNIFICANT TIME” – Appellant submitted that the Federal Magistrate failed to properly consider substantial and significant time – Consideration given as to whether the orders achieved “substantial and significant time” with the appellant – Orders made did provide for “substantial and significant time” – Consideration of substantial and significant fell within the reasoning of best interests considerations – Express reasons would have been desirable – Path of reasoning is discernible and valid – Federal Magistrate is not bound to consider proposals of the Court’s own creation where the parties’ proposals contain arrangements meeting the child’s best interests
Order set aside in accordance with the parties concessions – Appeal otherwise dismissed

Family Law Act 1975 (Cth) s 65DAA

Goode & Goode (2006) FLC 93-286
Saunders and Hammond (No 10) (2008) 38 FamLR 315
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) 37 FamLR 461
U v U (2002) 211 CLR 238
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

APPELLANT:

Mr WHISLER

RESPONDENT:

Ms WHISLER

APPEAL NUMBER:

2009

FILE NUMBER:

MLC

9819

2008

DATE DELIVERED:

17 February 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Warnick J

HEARING DATE:

10 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 May 2009

LOWER COURT MNC:

[2009] FMCAfam 445

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Ben-Simon

SOLICITOR FOR THE APPELLANT:

JDB Law

COUNSEL FOR THE RESPONDENT:

Ms Phelan

SOLICITOR FOR THE RESPONDENT:

Nevett Ford

Orders

That the appeal be allowed in part.
That Order 24 of the orders of Phipps FM made 8 May 2009 be set aside.
That the appeal be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Whisler & Whisler is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 53 of 2009
File Number: MLC 9819 of 2008

Mr WHISLER

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

AGLC: WHISLER & WHISLER [2010] FamCAFC 18
Case: [2010] FamCAFC 18
Decision Date: 17 February 2010

CaseChat Overview and Summary

The case of Whistler & Whistler involved the parents of a child and a dispute over the child's residence and contact arrangements. The Family Court was tasked with determining what was in the best interests of the child, in accordance with the legislative framework provided by the Family Law Act. The court was required to consider evidence and proposals from both parents, but also to remain mindful of the paramountcy of the child's best interests. This included considering proposals that were not necessarily put forward by either parent if they were in the child's best interests.

The legal issues before the court involved the scope of the inquiry the Family Court was to undertake in determining the child's best interests. The court had to balance the adversarial nature of the proceedings with the need to consider all relevant evidence and proposals, while ensuring that the child's best interests remained paramount. The court had to determine whether it was permissible to consider proposals not made by the parents, and whether it was required to consider equal or substantial and significant time arrangements even if neither party had sought them.

The court held that it was not confined to considering only the parents' proposals, and that it had a duty to consider the child's best interests, even if that meant considering proposals not put forward by either parent. The court also held that it was not bound by the presumption of equal shared parental responsibility and could make orders that were in the child's best interests, even if they were not sought by either party. The court emphasised that while the adversarial model of proceedings was to be followed, it was not to be confined by the parents' proposals and had to consider all relevant evidence to determine the child's best interests.

The court allowed the appeal in part, set aside a particular order made by the Family Court, and dismissed the appeal otherwise. This decision reinforced the importance of considering the child's best interests in family law proceedings and the need for the Family Court to remain mindful of the paramountcy of those interests.

Orders

Orders of the court

That the appeal be allowed in part.

That Order 24 of the orders of Phipps FM made 8 May 2009 be set aside.

That the appeal be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the same case , Hayne J said:[171] In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular “proposals” that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.[172] That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.) [emphasis added] Ms Ben-Simon referred to consideration of U v U in Goode & Goode (2006) FLC 93-286. There the Full Court of this Court said:[47] Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests. Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court’s view ultimately in the child’s best interests for such an order to be made (U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 and Bolitho and Cohen (2005) FLC ¶93-224). [emphasis added][81] … the legislative pathway must be followed.[82] In an interim case that would involve the following:…j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; andk)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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