Court Determines Primary Judge's Decision Was Not 'Plainly Wrong' in Parenting Orders and Costs Order
Webb & Simpson [2023] FedCFamC1A 15 (17 February 2023)
The case concerns parenting orders and a costs order between two parents who have separated and a child who has left the mother's home to live with the father. The court determined that the orders made by the primary judge were not 'plainly wrong' and the appellant's claims were not properly characterized as acting on wrong principle.
Facts:
The mother had a child, E, from a previous relationship, who was in the mother's care when they started cohabiting. The relationship between the parents deteriorated and the mother took X to a psychologist to address anxiety due to the father's alleged abuse. They separated in March 2015, with the father caring for X five nights a fortnight. In December 2015, E left the mother's home to live with the father. After various other events, the primary judge made orders in terms of the minute of order sought by the respondent and supported by the independent children's lawyer.
The appellant wanted to provide further evidence to the Court, but accepted it would not prove appealable error on the part of the primary judge, only relevant if the appeal were allowed. The respondent and independent children's lawyer did not oppose this, but since the appeal will be dismissed, the further evidence will not be admitted.
Issue:
The issue in this case is whether the primary judge made errors in his decision by not considering the evidence that supported the appellant's claims of family violence; wrongly referring to the ability of the parents to communicate; and not properly considering the views of the child.
Applicable law:
Family Law Act 1975 (Cth) - confers on a trial judge a broad discretion when making parenting orders, guided by statutory principle.
Analysis:
This case dealt with two primary contentions related to parenting orders and a costs order. The court determined that the parenting orders were not 'plainly wrong' according to the evidence presented before the primary judge. As for the costs order, the court determined that the decision could not be regarded as 'plainly wrong' or unreasonable as the appellant had the capacity to make the payment according to her financial situation.
The appellant is arguing that the primary judge made errors in his decision by not considering the evidence that supported their claim of family violence; wrongly referring to the ability of the parents to communicate; and not properly considering the views of the child. The appellant's claims were not properly characterized as acting on wrong principle, as the primary judge was found to have been appropriately referring to the responsibilities of parenthood, and he did consider the child's views; in assessing the weight to be given to them, he was entitled to consider evidence from the respondent and the single expert.
Conclusion:
The Court dismissed an oral application to adduce further evidence and an amended notice of appeal filed on November 28, 2022.
Case: Webb & Simpson [2022] FedCFamC1F 732
Judgment of: TREE, CHRISTIE AND SCHONELL JJ
Counsels: