WPD v JCW - [2011] HCASL 164

WPD
v
JCW
[2011] HCASL 164
M143/2010

The applicant seeks special leave to appeal against orders of the Full Court of the Family Court of Australia (May, O'Ryan and Strickland JJ) dismissing the applicant's appeal against the orders of a single judge of the Family Court (Bennett J).
The proceedings in the Family Court concerned what orders should be made in respect of the residence of the two children of the parties' marriage and the contact the applicant (the children's father) should have with them.
The respondent, the children's mother, had alleged that the applicant had assaulted her and the children and had sexually interfered with one of the children. The applicant's entitlement to spend time with the children (pursuant to orders made by consent in 2004) was suspended by order of the Federal Magistrates Court made in November 2005. He was charged with a series of serious offences. At his trial in the County Court of Victoria the trial judge directed the jury to return a verdict of not guilty to some counts; the jury returned a verdict of not guilty to all the other counts.
The applicant applied to the Family Court for fresh orders governing the residence of the children and his contact with them. The primary judge (Bennett J) found that the allegations of sexual and physical abuse made by the respondent against the applicant were unfounded. Her Honour concluded that "the mother had purposefully conditioned the children to believe that they had been abused by the father, when they had not, and had done so in order to cut the father out of the lives of the children". The children, however, expressed their wish not to spend time or live with their father. Bennett J ordered that the applicant and respondent each have parental responsibility for the children but that the children live with the respondent and that the applicant communicate with the children only by letter on each of their birthdays and at Christmas and Easter each year, or as the children request.
The applicant advances no sufficient reason to conclude that the actual decision reached by the Full Court was wrong. An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.
No sufficient reason is advanced to depart from the ordinary rule that costs should follow the event.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

K.M. Hayne
6 October 2011 S.M. Crennan

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 WPD v JCW

Details

AGLC: WPD v JCW [2011] HCASL 164
Case: [2011] HCASL 164
Decision Date

CaseChat Overview and Summary

The case of WPD v JCW is an application for special leave to appeal against orders made by the Full Court of the Family Court of Australia. The applicant, the father, is appealing the Full Court's decision to dismiss his appeal against the orders of a single judge of the Family Court. The primary issue before the Family Court was the residence of the children and the contact the father should have with them. The mother alleged that the father had assaulted her and the children and had sexually interfered with one of the children. The father's entitlement to spend time with the children was suspended by order of the Federal Magistrates Court made in November 2005.

The legal issues before the court were whether the Full Court's decision was incorrect and whether there were sufficient grounds for an appeal to the High Court. The court found that the allegations of sexual and physical abuse made by the mother against the father were unfounded and that the mother had purposefully conditioned the children to believe that they had been abused by the father, when they had not. The court ordered that the father and mother each have parental responsibility for the children but that the children live with the mother and that the father communicate with the children only by letter on each of their birthdays and at Christmas and Easter each year, or as the children request.

The court found that there was no sufficient reason to conclude that the actual decision reached by the Full Court was wrong and that an appeal to the High Court would not enjoy sufficient prospects of success to warrant a grant of special leave. The court also found that there was no sufficient reason to depart from the ordinary rule that costs should follow the event. The court directed the Registrar to draw up, sign and seal an order dismissing the application with costs. This case highlights the importance of evidence in family law proceedings and the court's consideration of the best interests of the children in making orders.

Orders