In the case of Marcis & Galanis  FamCAFC 234 the father appealed parenting orders that reduced the amount of time he would spend with his children and property orders that he said did not sufficiently recognise his contributions and unlawfully favoured the mother.
The father challenged the judge’s approach taken in the reopening of the parenting matter, argued that there was a failure to provide adequate reasons for limiting the children’s time with him and disputed that the time he had been granted under the orders amounted to substantial and significant time as defined in ss 65DAA(3) and (4) Family Law Act 1975 (Cth).
The father challenged the judge’s decision not to adduce further expert evidence before delivering a final judgment in the reopening of the parenting matter. The Court considered his Honour’s finding that the expert evidence available to him at the time was sufficient to be open to him. Taking into account the undue delays the parties had already experienced, his decision to adjudicate on the current evidence at hand was found to be reasonable and thus this ground of appeal was dismissed.
The Court rejected the father’s claim that the trial judge had inadequate reasons for ordering that the children live with the mother and spend time with him. Expert evidence provided by Dr [H] stated that child [X] wished to spend more time with the mother and that the current equal time arrangements were not working. Dr [H] submitted to the Court that the “events since 2011 have shown that these parents lack the benchmark qualities which are required for 50:50 shared residential care to work well.” The Court found that the ground was not made out as “his Honour carefully considered the proposals of the parties, their evidence and the expert evidence”.
The father’s ground of appeal that the orders did not provide him substantial and significant time with the children was found to have no substance. It was open to the trial judge to give orders providing more substantial and significant time than what was granted to the father. However, the conditions provided by s 65DAA(3) of the Act for time to be substantial and significant were all met by the orders of the trial judge.
The father was found to have several valid grounds of appeal of the property orders. His submission that the trial judge failed to take into account several facets of his contributions was substantiated. These included the use of a $60,000 redundancy to discharge the mortgage on the wife’s property, his decision to work full-time throughout the marriage, his significant contributions to the care of the children and his undertaking of renovations of the wife’s property. The extent to which his contributions were overlooked was found to be an error requiring appellate intervention.
Furthermore, there were several other errors found in the trial judge’s consideration of the property matter. It was found that the trial judge overlooked the father’s submissions regarding the value of his superannuation, motor vehicle and personalty. Taking all these factors into account, the Court came to the conclusion that “his Honour’s ultimate conclusion concerning the comparative value of the parties’ contributions is fatally flawed”.
The Court found that the father had failed to establish error in relation to the parenting orders and so the parenting appeal was dismissed. His appeal of the property orders was allowed and the previous orders were set aside, with the property proceedings being set for a rehearing in the Federal Circuit Court.
Boyce Family Law
Family Lawyers Sydney