On 25 September 2015 the Family Court of Australia handed down the judgment of Paggett & Cable  FamCAFC. The Court overturned the trial judge’s decision to deny the father parental responsibility and to grant him only very limited contact with the child. This judgment is a reminder that significant and credible evidence is necessary to support the limitation of parental contact and the denial of parental responsibility.
The trial judge made orders providing that the mother was to have sole parental responsibility for the child, for the child to live with the mother, and for the child to spend a limited amount of time with the father. While the father did not wish for the child to live with him he took issue with his exclusion from the exercise of parental responsibility and the very limited time with the child granted to him by the trial judge. The Orders were particularly disappointing as they gave the father less time than what was recommended by the family consultant and sought by the mother.
The father successfully appealed the decision on multiple grounds. The significant delay of 17 months between the final hearing and the making of Orders and delivery of was found to have a negative impact on the judgment. This delay was found to have impaired the trial judge’s capacity to assess all the evidence, resulted in a failure to make necessary findings of fact and caused undue weight to be given to more recent evidence adduced in February 2015.
It was also found that there was a lack of consideration of an order for the child to spend substantial and significant with the father. The Court particularly had regard to the father’s application for substantial and significant time, an existing order for a relatively small amount of time to be spent with the father and the trial judge’s taking into account of the anxieties of the mother that were found to be not “necessarily based upon reality”.
An order that seemingly restrained the parties from reaching a private agreement until 2016 was ruled to be unenforceable. The order states that the child could spend an increasing amount of time with the father after 2016 “if the parties wish to do so”. The Court described this Order as “aspirational” and surmised it could inflame conflict as it encourages an expectation for increased time for the father that the mother may not consent to.
This case demonstrates the problems delays in the court process can cause parties and the need for strong evidence to support orders curtailing the time spent and responsibility sought by a parent. Orders that favour one parent need to be supported by evidence such as the unfavourable findings of a family consultant or credible concerns with the ability of the parent to provide adequate care.
The significant delay between the first hearing and the making of orders in this instance contributed to the judgment being overturned. The parties of Paggett & Cable now have to await a retrial, which compounds the delays they have already experienced. In light of this decision undue delays between hearings and the delivery of orders should be avoided in order not to further aggrieve parties that are already inconvenienced.
Boyce Family Law
Divorce Lawyers Sydney