Father's bid for equal custody rejected, court dismisses late application for additional evidence
Aiken & Cassone [2022] FedCFamC1A 220 (21 December 2022)
A father's bid for equal shared parental responsibility and custody rejected by primary judge citing risks of harm to the mother and children, with the court dismissing the father's late and deficient application to adduce further evidence in the appeal. The judgment largely reflected the mother's orders and was supported by an independent children's lawyer.
Facts:
The parties in this case began cohabitation in 2013 and had two children together in 2015 and 2017. After a dispute over their separation, the mother vacated the family home in August 2019, and the parties obtained family violence orders against each other. In October 2019, interim parenting orders were made with the parties' consent, which provided for the children to live with the mother and only have supervised time with the father. The trial of the parenting proceedings lasted four days in March and April 2022, with judgment delivered in September 2022, resulting in orders that largely reflected those sought by the mother and were supported by the independent children's lawyer.
The father had sought equal shared parental responsibility and for the children to live with both parties for equal time. However, his concerns about the mother were ultimately rejected by the primary judge, who instead found that the father posed risks of harm to the mother and children based on evidence from a single expert psychiatrist. The primary judge also found that it was unlikely the father's behavior would change based on his participation in a parenting course. The father filed an application to adduce further evidence in the appeal, but it was dismissed for substantive reasons.
The father's application to adduce further evidence was late and deficient, and its reception now would tend to obliterate the distinction between original and appellate jurisdiction. The proposed evidence was also rejected because it would be contentious and would not help establish appealable error by the primary judge. The father's right of appeal is limited to the evaluation of whether the primary judge made an error of fact, law, or discretion. The court's decision to dismiss the father's application meant that the appeal proceeded without the additional evidence.
Issue:
Whether or not the father's appeal should be granted.
Applicable law:
Family Law Act 1975 (Cth) s 60CC - provides that in ‘applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b)’.
Analysis:
The father argued that the judge did not reasonably consider several pieces of evidence that could have challenged the mother's credibility. However, the court found that the father's argument was based on an incorrect understanding of the weight of evidence and that the judge's findings were not amenable to challenge by an assessment of the probative weight which ought to have been attributed to various parts of the evidence.
The court also noted that the father's challenge to the findings was misconceived because it attempted to challenge a finding rather than an order, and weight submissions were only pertinent to contentions of discretionary error infecting orders. The court found that the primary judge's decision was based on an assessment of the evidence before him and that the father's arguments did not undermine the judge's findings. Therefore, the court dismissed the father's appeal.
Conclusion:
The Application in an Appeal filed on 1 December 2022 is dismissed. The appeal is dismissed. The Independent Children’s Lawyer’s application against the appellant for costs of and incidental to the appeal is dismissed.
Case: Aiken & Cassone [2022] FedCFamC1A 220
Judgment of: AUSTIN, REES & KARI JJ
Counsels:
Counsel for the Applicants: Mr Bateman
Solicitor for the Applicants: Swifte Law
Counsel for the First Respondent: Mr Fantin
Solicitor for the First Respondent: SCB Legal Pty Ltd
Counsel for the Second Respondent: Ms Kaiti
Solicitor for the Second Respondent: Inner West Solicitors Pty Ltd
Solicitor Advocate for the Independent Children’s Lawyer: Ms Walberglackman
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW