Judge maintains father's sole parental responsibility that he didn't even ask for.
FLAST CASE BRIEF : BUCHANAN & MORGAN [2019] FamCAFC 62
This case was an appeal from the mother of a parenting judgment where the father was given sole parental responsibility that he didn't even ask for.
The orders provide, inter alia, that the father have sole parental responsibility for the child (subject to conditions as to the manner in which those decisions would be taken) and that the child live with him.
At the time of trial it was accepted that the mother did not pose a risk to the child, and by agreement between the parties, the child was spending time with her two nights each week. The orders made by Cleary J increased the child’s time with the mother to five nights each fortnight spread over two periods. Upon the child starting school, he is to spend five nights each fortnight with the mother during school terms and half of each school holiday period. Provision is also made for the parties to share nominated special occasions.
The mother appeals from Order 2 (sole parental responsibility), Order 3 (the child live with the father), Order 4 (the child’s time with the mother), Order 5 (which deals with special days) and Order 6 (which provides for changeover arrangements).
It involved a situation where the primary judge misstated the father's final position as to parental responsibility and time and the mother had rejected the father's proposals.
Ground 1 challenges the manner in which the primary judge dealt with the father’s proposal that there be an order for equal shared parental responsibility, and her decision to order that the father have sole parental responsibility (as qualified in the order). By Ground 9 it is argued that the primary judge misstated the orders sought by the father (as to parental responsibility and time) and thus her Honour failed to take into account relevant material. Or, framed in the negative, that her Honour took into account irrelevant material.
Stated broadly, she seeks that she have sole parental responsibility for the child, that the child lives with her and spends time with the father for two periods totalling five nights in each fortnight during school terms and half of each school holiday period.
The primary judge's determination was accordance with the best interests of the child due to the finding that the child’s relationship with the father is at risk if the child was to live with the mother.
This is an appeal against the exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519).
ISSUE :
Where the errors unrelated to the relief sought on appeal? Was this abuse of process in the conduct of the trial, can yo appeal against an exercise of judicial discretion?
HELD :
The mother failed to establish that the findings sought at trial were in relation to the complaint now made. The contentious findings were neither fundamental or obvious and the errors immaterial to the outcome. Appeal Dismissed.
Click here to see the full judgment of the appeal Buchanan & Morgan [2019] FamCAFC 62 and the original judgment can be found here Buchanan & Morgan [2018] FamCA 798 (5 October 2018).