FAMILY LAW – APPEAL – CHILDREN – Parenting proceedings – Whether the trial judge erred in making a coercive order for the mother to relocate the child’s residence – Whether the trial judge erred in assessing reasonable practicability within the meaning of s 65DAA – Whether rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order.
FAMILY LAW – APPEAL – CHILDREN – Parenting proceedings – Undesirability of credit findings against parents where not necessary to legitimate disposition of the case – Whether adverse credit findings required here – Whether the trial judge erred in making findings adverse to the mother’s credit – Whether the trial judge’s Reasons infected with inconsistent findings.
Appeal allowed – Matter remitted for re-hearing – Costs certificates granted to both parents for the appeal and the re-hearing.
Orders (3) and (20) of the Orders made by Judge Altobelli on 7 March 2014 be set aside.
Order (4) of the Orders made by Judge Altobelli on 7 March 2014 be varied by substituting that order with the following:
(4) That the child, X, live with the Mother and spend time with the Father as follows:
(a)Each alternate weekend from 7pm on Friday until 6pm on Sunday; and
(b)During each school holiday period as agreed between the parents but failing agreement in the first half in even numbered years and the second half in odd numbered years, limited to:
(i) Three nights during the first term school holiday this year;
(ii)Four nights during the second term school holiday this year;
(iii)Five nights during the third term school holiday this year; and
(iv)Half the 2014-2015 summer school holidays, taken in one week blocks as agreed but failing agreement during the first, third and fifth weeks of…
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 Adamson & Adamson
Sign in free to access the full text
Details
AGLC
Adamson & Adamson [2014] FamCAFC 232
Case
[2014] FamCAFC 232
Decision Date
CaseChat Overview and Summary
Adamson & Adamson involved an appeal against parenting orders made by the Family Court. The dispute centred on whether the trial judge had erred in making a coercive order for the mother to relocate the child's residence, and in assessing the reasonable practicability of relocation within the meaning of s 65DAA. Additionally, the appeal questioned whether rare or exceptional circumstances existed to justify the coercive order and if there were adverse credit findings against the mother.
The legal issues revolved around the trial judge's discretion in making coercive relocation orders and the assessment of reasonable practicability. The court also examined the necessity and appropriateness of credit findings against the mother, and whether the judge's reasons were consistent. The appeal further addressed whether the trial judge erred in making adverse findings about the mother’s credit and whether those findings were necessary for the disposition of the case.
In allowing the appeal, the court held that the trial judge erred in making the coercive relocation order and in assessing reasonable practicability. The court found that the trial judge had not adequately considered the father's willingness and ability to provide care, and had not sufficiently justified the coercive order. The adverse credit findings against the mother were deemed unnecessary and inappropriate. The court concluded that the trial judge's reasons contained inconsistent findings, impacting the legitimacy of the decision. Consequently, the appeal was allowed, and the matter was remitted for re-hearing before a different judge. Costs certificates were granted to both parents for the appeal and the re-hearing.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Orders (3) and (20) of the Orders made by Judge Altobelli on 7 March 2014 be set aside.
3.
Order (4) of the Orders made by Judge Altobelli on 7 March 2014 be varied by substituting that order with the following:
(4) That the child, X, live with the Mother and spend time with the Father as follows:
(a) Each alternate weekend from 7pm on Friday until 6pm on Sunday; and
(b) During each school holiday period as agreed between the parents but failing agreement in the first half in even numbered years and the second half in odd numbered years, limited to:
(i) Three nights during the first term school holiday this year;
(ii) Four nights during the second term school holiday this year;
(iii) Five nights during the third term school holiday this year; and
(iv) Half the 2014-2015 summer school holidays, taken in one week blocks as agreed but failing agreement during the first, third and fifth weeks of such holidays.
4.
Order (5) of the Orders made by Judge Altobelli on 7 March 2014 be varied by discharging that order and replacing it with the following:
(5) For the purpose of facilitating the child, X, spending time with the Father, the changeover point is to be the Subway Restaurant, ...
5.
The proceedings be remitted to the Federal Circuit Court for re-hearing before a judge other than Judge Altobelli.
6.
There be no order as to the costs of the appeal pursuant to s 117 of the Family Law Act 1975 (Cth).
7.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect to the costs incurred by the appellant in relation to the appeal.
8.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect to the costs incurred by the respondent in relation to the appeal.
9.
The Court grants to the appellant and to the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the re-hearing.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Second and crucially, as earlier referred to the trial judge found that it was common to the proposals of both parents that it was in the child’s best interests that she should continue living with the mother. The trial judge found that it was not the father’s proposal that the child should live with him even if the mother did not herself relocate. Moreover, apart from the findings recorded in [11] to [13] of the Reasons earlier referred to, the trial judge at [21] “summarily dismissed” the Independent Children’s Lawyer’s proposal that the child live with the father if the mother chose not to herself relocate from Town S; “for the following briefly stated reasons”:·This is not a proposal advanced by the father;·To impose the obligation of responsibility for primary care of the child upon the father “is hardly child-focused”;·That the father’s “enthusiasm for the idea could be described, at its highest, as lukewarm and, in reality, in evidence he quite clearly felt that such a proposal was not in [the child’s] best interests”;·The father assuming primary care of the child “on any scenario, was not supported by the Court appointed expert, Dr [B]”; ·The mother “strongly opposes the idea”.(Emphasis added) Having dismissed that proposal by the Independent Children’s Lawyer the trial judge made the specific finding, “It is not an option, and therefore it is not an issue for determination, that [the child] live in the full time care of her father.” Third, in the context of the trial judge’s findings that:·Separation took place after the assault of the mother by the father on 17 July 2011 resulting in a final apprehended domestic violence order being made against the father at the Local Court for 12 months; ·The father’s conviction on a charge of common assault with the imposition of a good behaviour bond for two years (Reasons, [9]); and·The subject actions of the father constituted family violence (Reasons, [113]). the trial judge made specific findings that in moving to Town S at separation the mother “had no other option open to her” and that “it is clear the mother had no alternative.” In reaching those findings the trial judge expressly rejected the father’s criticisms of the mother’s move (Reasons, [84]). It is thus clear on the trial judge’s findings that not only did the mother and the child commence living in Town S soon after separation (in mid-2011) as a result of the choice made by the mother as to where she (and the child) would live, the reality for the mother was that at separation she had no alternative but to make that choice. In this context it bears repeating that by the time of the final orders being made the mother and the child had been living together in Town S for more than two and a half years. No person or court order required the father to move to Town C in September 2013. He moved to a place and at a time of his choosing. He chose to maintain his previous employment in Sydney.