Choose’s ‘deplorable’ seven-year delay in reaching child-custody resolution led to errors, courtroom finds | Legislation (Australia)
A family law decision that took a judge more than seven years after it was found that the “gross and unfortunate delay” contributed to “significant errors” has been appealed – and the verdict may have been passed despite the court record lost.
The parents of two children with special needs will be heard again after the family court has upheld the appeal against the decision of Federal Court Judge Anne Demack.
Judge Steven Strickland stated that the father’s appeal had to be allowed because the delay was not only “gross and unfortunate” but was also “made significantly worse” because Demack failed to explain or justify it.
Another judge, Stewart Austin, said the delay was “not the only calamity encountered here,” explaining how the 2019 court record was lost and there was no evidence that it was restored before the verdict last September.
Demack, who is based in Rockhampton, led a process in September 2013 to determine who should have custody of the two children and how the couple’s property should be divided. That decision got more complex when the mother won nearly $ 1.2 million in the lottery shortly before separating from father in April 2012.
Demack’s final directions put both parents in shared responsibility for making decisions about the children, a 12-year-old with autism and an 11-year-old with attention-deficit hyperactivity disorder and post-traumatic stress disorder.
She ordered the children to live with their mother except alternately between Wednesday afternoon and Monday morning.
But Strickland noted that Demack’s education orders showed a failure to come to terms with the father’s case and “overlook it.”[ed]to put it as liberally as possible, many aspects of the evidence ”.
“This is important here given the extraordinary delay,” said Strickland.
“Under the circumstances, her honor [Demack] was required to conduct a more detailed examination of the evidence and analysis of the parties’ respective cases than would normally be required.
“This is to prove to everyone involved that the delay did not affect the decision. That has not happened here. “
Strickland noted that Demack did not address the father’s arguments or evidence regarding the property regime either.
For example, she found that the father was unwilling to take any steps to find work, despite the fact that he had presented uncontested evidence that he was employed.
Austin, who agreed to Strickland’s instructions on the appeal, but for various reasons, stated that Demack had “sidestepped” the difficult questions of parenting review and that, despite correctly identifying the principles that should be followed in resolving a property dispute, ” inexplicably failed “to follow them.
He said that in September 2019, at the start of the third phase of the trial, Demack advised the parties’ lawyers that the court record had “disappeared” and that the minutes or the reasons for the judgment contained no indication of the recovery.
He said Demack had advised attorneys that the printed exhibits were also lost and that, although it appeared she had received new copies of her submitted documents – provided they were included in the appeal documents -, this “remains unknown whether the missing exhibits were ever replaced”.
Austin added that replacing these documents may not have been possible due to the lack of an exhibit list for the portion of the experiment conducted before March 2018.
“The only reasonable conclusion is that their honor was deprived in resolving the disputes and therefore disregarded material evidence,” he said.
Both judges expressed their dismay that issuing the appeal would lead to further hearings for the family more than eight years after the trial began.
“Given the proven error of law, factual and discretion, however unattractive the proposal may be, there is now no choice but to remit the hearing,” said Austin.
“If the dual goals of achieving justice and efficiency cannot be achieved together, justice must prevail.”
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