· 2021-12-22T15:41:52+0000 · 664 posts

Father Appeals Final Parenting Orders

Sullivan & Sullivan [2021] FedCFamC1A 87 (16 December 2021)

Final parenting orders were made providing for the mother to have sole parental responsibility for the children and that they live with her and spend time with the father on alternate weekends and for half of all school holidays. The father appealed seeking a reversal of the orders so that the children could live with him and spend time with the mother. The Court, in resolving this dispute assessed the challenge as to parental responsibility and live with arrangements.

Facts:

Mr Sullivan (“the father”) appeals from orders made by a judge of the Federal Circuit Court in proceedings concerning the parenting arrangements for the two children of his relationship with Ms Sullivan (“the mother”).

The children, X and Y (“the children”) are now aged nine years and six years respectively. The mother also has an older child of a prior relationship, Z, who is aged 15 years. The orders appealed from provides that the mother have sole parental responsibility for the children and that they live with her and spend time with the father on alternate weekends and for half of all school holidays.

The father, by an Amended Notice of Appeal filed 12 August 2021, challenges those orders which relate to parental responsibility, residence and spending time, and seeks a reversal of them so that the children live with him and spend time with the mother.

The appeal is, in part, supported by the Independent Children’s Lawyer (“ICL”), but opposed by the mother. After a relationship of nine years, the parents separated on 17 December 2017, at a time when there was an incident between the parents to which the police attended. Thereafter X lived with the mother and Z, and Y, then not yet three years old, lived with the father.

Neither parent would agree to the children living together. After about six months, the mother removed Y from his pre-school and kept him. The parents entered into a parenting plan which provided for the children to spend alternate weekends with each parent but, after a short time, the mother withheld the children from the father. On 30 October 2018, a judge of the Federal Circuit Court made interim orders that the children spend time with the father on two weekends out of three.

By the time of the trial which commenced on 22 August 2019, the children had lived with the mother since about June of 2018. The orders under appeal resulted from a discretionary judgment. The family report writer concluded that neither parent presents as being able to encourage and support the children’s relationship with the other parent.

Issue:

Whether or not the primary judge failed to engage the father's case and assess the evidence and make appropriate findings on the basis of that evidence.

Applicable law:

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 - held that there is a strong presumption that a discretionary judgment is correct.

De Winter and De Winter (1979) FLC 90-605 - relied upon in holding that the counsel for the father's submission that the primary judge was in error in finding that the protection order was applied for by the police when it was the mother who was the applicant is not material.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - held that the appellant must demonstrate:

That the judge acted upon a wrong principle.
That the judge was influenced by irrelevant or extraneous material.
That the judge mistook the facts.
That the judge did not take into account some material consideration.
That the result is unreasonable or plainly unjust.

Manifold & Alderton [2021] FamCAFC 61 - held that the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the father’s case and with the evidence, and to provide adequate reasons for her conclusions.

Analysis:

No error is asserted in the primary judge’s recitation of the grounds upon which the protection order was sought. Clearly, the primary judge relied, not on the police report as counsel for the father submitted but on the grounds relied upon in the application for the protection order. Counsel for the father refers to a police report of an incident on 15 June 2018, and reports to the police made on 5 November 2018, 23 November 2018 and on 3 December 2018 or in relation to a “street check summary” made by police. However, there was no reference made in the submissions by counsel for the father to the primary judge of any of those specific matters. Counsel for the father did not submit that any particular finding followed from that evidence. Hence the father conducted the trial before the primary judge in a way which is at odds with the challenge now made.

As to the complaint that the primary judge did not engage with the evidence of the mother’s involving the children in the dispute, there were no submissions addressed to the primary judge in relation to this evidence. The primary judge was acutely aware of the negative attitude of each of the parents towards the other and the consequent effect on the children.

Conclusion:

No error of the primary judge is established by her failing to make findings she was not asked to make. The appeal is dismissed. In the event the appeal failed, neither the mother nor the ICL sought any order for costs.

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