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Abbey & Cyris

Abbey & Cyris

Case [2023] FedCFamC1A 103 29 June 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abbey & Cyris [2023] FedCFamC1A 103

Appeal from: Cyris & Abbey [2023] FedCFamC2F 228

Appeal number(s): NAA 54 of 2023

File number(s): NCC 2176 of 2022

Judgment of: AUSTIN J

Date of judgment: 29 June 2023

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the child’s residence from the mother to the paternal aunt – Where the orders were the product of judicial review of orders made by a senior judicial registrar – Where the object of the father’s review application was to expand the time the child spends with him – Whether the primary judge denied the mother procedural fairness by changing the child’s residence – Where the review hearing by the primary judge entailed an original hearing of the competing applications before the registrar, including the contest over the child’s residence – Where the mother was accorded procedural fairness – Where the mother’s complaint the primary judge erred by failing to follow the guideline decision of Goode & Goode (2006) FLC 93-286 is rejected – Where the primary judge considered the relevant factors under s 60CC of the Family Law Act 1975 (Cth) – Appeal dismissed – Where no application for costs was made – No order as to costs.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4, 60CC, 61DA, 65DAA, , 69ZK, 69ZL

Family Law Regulations 1984 (Cth) reg 12B, Sch 5

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07

Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 60, 79

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 47

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 17

Banks v Banks (2015) FLC 93-637; [2015] FamCAFC 36

Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29

Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Number of paragraphs: 70

Date of hearing: 27 June 2023

Place: Newcastle

Counsel for the Appellant: Mr Iuliano

Solicitor for the Appellant:

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.

Continue reading Abbey & Cyris

Details

AGLC: Abbey & Cyris [2023] FedCFamC1A 103
Case: [2023] FedCFamC1A 103
Decision Date

CaseChat Overview and Summary

This appeal arises from a decision of a Federal Circuit and Family Court judge who reviewed interim parenting orders made by a senior judicial registrar. The mother appeals from those orders, which include a requirement that the child lives with the paternal aunt and spends time with both parents. The appeal raises several grounds, the principal of which is that the primary judge denied the mother procedural fairness by not warning her that he might change the child’s residence. That ground fails because the mother was afforded procedural fairness. The mother also complains the primary judge failed to follow the guidance of the Full Court in Goode & Goode (2006) FLC 93-286, but the Full Court’s guidance was followed. The mother further contends inadequate reasons were given for the orders requiring the child to live with the paternal aunt and to spend time with her. That submission is rejected because the reasons given were adequate. The appeal is dismissed.

Orders