FAMILY COURT OF AUSTRALIA
| AKSTON & BOYLE | [2010] FamCAFC 56 |
| FAMILY LAW - APPEAL – Against parenting orders made by a Federal Magistrate – Where a significant issue in the proceedings related to the use of drugs by the Father and the risk of harm to the child – Where there is a history of abuse of the child FAMILY LAW - APPEAL – EVIDENCE – Where the issue of any current or future risk of harm to the child required careful consideration of the evidence– Where the controversy about the use of drugs was clearly relevant to consideration of the matters in s 60CC(2)(b), s 60CC(3)(f), (i), (k), (l) and (m) and, in turn, s 65DAA(1)(a), s 65DAA(2)(c) and s 65DAA(5)(b) and (c) FAMILY LAW - APPEAL – EVIDENCE – Where the Federal Magistrate had the benefit of the Family Report and where the Family Consultant was not cross examined – Where the Family Consultant made a number of recommendations none of which were reflected in the final orders of the Federal Magistrate – Where the Federal Magistrate’s reasons for departing from the recommendations of the Family Consultant are inadequate FAMILY LAW - APPEAL – EVIDENCE – Where the Federal Magistrate made findings consistent with what was urged upon him on behalf of the Father – Where the Federal Magistrate failed to give sufficient consideration to a number of matters including but not limited to the Father’s drug usage – Where the Federal Magistrate gave undue weight to what the Father contended he had done since the interviews with the Family Consultant – Where there was a preponderance of evidence which pointed to a risk of harm which the Federal Magistrate failed to assess and give appropriate weight to when considering the very important question of risk of harm FAMILY LAW - REDETERMINATION – That the matter be remitted for rehearing – Where evidence will need to be adduced as to the what has happened since the orders subject of the appeal – Where a further Family Report should be prepared – Where consideration may have to be given to other expert evidence such as evidence from an expert in drug and alcohol abuse FAMILY LAW - COSTS – Where both parties are in receipt of a grant of legal aid – Where the appeal succeeded on an question of law – Costs certificates granted |
| A & J (1995) FLC 92-619 Norbis v Norbis (1986) 161 CLR 513 Oakley & Cooper [2009] FamCAFC 133 |
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- AGLC
- Akston & Boyle [2010] FamCAFC 56
- Case
- [2010] FamCAFC 56
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Federal Magistrate erred in failing to sufficiently consider the Father's drug use and the risk of harm to the child, and whether the Federal Magistrate's reasons for departing from the Family Consultant's recommendations were adequate. The court needed to examine whether the Federal Magistrate correctly applied the relevant provisions of the Family Law Act 1975, including sections 60CC(2)(b), 60CC(3)(f), (i), (k), (l), and (m) and sections 65DAA(1)(a), 65DAA(2)(c) and 65DAA(5)(b) and (c).
The court found that the Federal Magistrate failed to give sufficient consideration to the Father's drug use and the risk of harm to the child, and the reasons provided for departing from the Family Consultant's recommendations were inadequate. The court concluded that the Federal Magistrate did not properly assess the preponderance of evidence pointing to a risk of harm. Consequently, the appeal was allowed, the orders were set aside, and the matter was remitted for rehearing before a different Federal Magistrate. The court also granted costs certificates to both parties in accordance with the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
The appeal be allowed.
2.
Orders 11 and 12 made on 15 December 2008 be set aside.
3.
The applications for final parenting orders are remitted for rehearing before a Federal Magistrate other than Coates FM.
4.
There be no order as to costs between the parties.
5.
The Court grants to the Appellant a costs certificate pursuant to section 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 of the costs she has incurred in relation to the appeal.
6.
The Court grants to the Respondent a costs certificate pursuant to section 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 of the costs he has incurred in relation to the appeal.
7.
The Court grants to each party a costs certificate pursuant to the provisions of section 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 them in respect of the costs incurred by them in relation to the rehearing.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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