IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal No. EA 2 of 2000 File No. SY 9647 of 1994
A
Appellant Mother
AND
A:
Respondent Father
Relocation Approach
REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE:Nicholson CJ, Ellis and Coleman JJ
DATE OF HEARING: 8 May 2000 DATE OF JUDGMENT: 1 August 2000
APPEARANCES:Mr G. Johnston of Counsel instructed by the Legal Aid Commission of NSW, 323 Castlereagh Street, Sydney, NSW 2000 appeared for the Appellant Mother.
Mr J.S. van Aalst of Counsel instructed by John Hertz & Associates, Solicitors, 1106 Botany Road, Botany, NSW 2109 appeared for the Respondent Father.
A v A: Relocation Approach Appeal No. EA 2 of 2000 Coram: Nicholson CJ, Ellis and Coleman JJ Date of Hearing: 8 May 2000 Date of Judgment: 1 August 2000
Catchwords: Family Law - Residence - Planned relocation of mother - AIF v AMS (1999) FLC 92-852 and Paskandy v Paskandy (1999) FLC 92-878 considered and applied - Martin v Matruglio (1999) FLC 92-876 considered - Correct approach to relocation cases
This was an appeal by the mother against orders made by Moss J on 7 December 1999.
The parties were married in 1990 and separated in 1994. There was one child of the marriage, M, aged 9 at trial. The mother also has a child from a previous marriage, C, aged 6 at the time of marriage, who lived with the parties and her half-sister M during the marriage and currently lives in Portugal with her father.
In December 1995, Nicholson CJ ordered, using the terminology of the Family Law Act1975 in its form at the time, that the parents be joint “guardians” of M, that the mother have “custody” and that the father have “access” as specified.
In April 1999, the mother sought and the father opposed what may be described as a parenting order enabling her to relocate with M to Portugal. At about the same time, contact between M and the father ceased, and at the time of the appeal, there were orders suspending contact until further order.
The mother ceased contact on the basis of alleged ‘inappropriate’ behaviour by the father. The trial Judge was of the view, however, that appropriate steps should be taken ‘as quickly as possible’ to re-establish contact between M and the father. His Honour then made the orders against which the mother has appealed, inter alia that M reside with the mother in Sydney and have contact as specified with the father,
On appeal, the mother submitted that the trial Judge erred in:-
Failing to give weight to the doctors’ evidence that the mother’s mental health and capacity to care for M would improve if she were ‘permitted’ to live with M in Portugal;
Failing to consider the impact on M of the mother’s depression in the event of not being ‘permitted’ to relocate with M;
Failing to take account of the evidence that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
A v A: Relocation approach [2000] FamCA 751
Case
[2000] FamCA 751
Decision Date
CaseChat Overview and Summary
The Full Court of the Family Court of Australia considered an appeal by the mother against orders made by Moss J concerning relocation. The dispute centred on the relocation of a child, and the primary judge's decision-making process in relation to this issue.
The central legal issue before the Full Court was whether the primary judge had erred in his application of the doctrine of judicial notice. Specifically, the Court had to determine if the primary judge had properly afforded the parties an opportunity to make submissions and refer to relevant information concerning the knowledge he proposed to acquire or take into account, as required by s 144 of the *Evidence Act 1995* (Cth).
The Full Court reasoned that the primary judge's reliance on judicial notice was a significant error, particularly as it occurred within a judgment that failed to compare the relative merits and disadvantages of the relocation proposals before him. The Court held that the primary judge had not provided the appellant mother with the necessary opportunity to make submissions, thereby breaching s 144(4) of the *Evidence Act 1995* (Cth). Consequently, the appeal was allowed, the previous orders were set aside, and the matter was remitted for rehearing. The Court also granted costs certificates to both the appellant mother and the respondent father in respect of the appeal.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
It was not open to his Honour to draw upon the doctrine of judicial notice in the way that he did (see the Full Court judgment of X v X [1999] FamCA 2254, not yet reported) although we note that the decision was not available at the time that his Honour gave judgment in this case). It was there held that s144 of the Evidence Act1995 (Cth) provides the only test as to whether resort may be had to judicial notice. Importantly, sub-s 4 provides:“The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." Such opportunity was not provided and we are of the view that his Honour's reliance on judicial notice as a basis for his decision is a significant error, particularly within a judgment that did not compare the relative merits and disadvantages of each of the proposals that were before him. For all the foregoing reasons we are of the view that the appeal should be allowed. Given the submissions of counsel and our inability to re-exercise the discretion on the material before us, we must remit the matter for rehearing. We agree that the rehearing should be expedited. Both parties sought certificates under the Federal Proceedings (Costs) Act 1981. Having regard to our finding that his Honour erred as a matter of law, and the circumstances relating to the appeal, we consider it is appropriate to accede to those requests in respect of the costs of the appeal. The orders of the Court are:1.That the appeal from the orders of the Honourable Justice Moss made on 7 December, 1999 is allowed.2.That the orders of the Honourable Justice Moss made on 7 December, 1999 are set aside.3.That the proceedings be remitted for rehearing before a single Judge with such expedition as the List Judge is able to give to the matter.4.That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.5.That the Court grants to the respondent father a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.