Amador & Amador

Case [2009] FamCAFC 196


FAMILY COURT OF AUSTRALIA

AMADOR & AMADOR [2009] FamCAFC 196
FAMILY LAW - APPEAL – PARENTING – INTERNATIONAL RELOCATION – appeal against Orders of Federal Magistrate permitting the mother to relocate with the parties’ 4 year old son to Serbia – Child diagnosed with autism spectrum disorder – whether Federal Magistrate erred in finding it in child’s best interests to relocate and not finding the child’s autism to be a mitigating factor against relocation – whether Federal Magistrate erred in not addressing likely effect of disruption to child’s treatment – evidence of the availability of facilities and services in Serbia for treating and assisting the child – held that Federal Magistrate was in error in relying upon the contents of a document which her Honour stated to be unreliable and which evidence objected to at the hearing – whether that error was crucial to Federal Magistrate’s determination allowing the relocation – consideration of the mother’s illness with thyroid cancer – Federal Magistrate’s understanding of the importance of the father and child’s relationship – allegations of family violence by the father against the mother – determining allegations in relation to violence – appeal allowed and the  matter remitted for hearing.
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
A v A (1998) FLC 92-800
Briginshaw v Briginshaw (1938) 60 CLR 336
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition & Consumer Commission [2007] FCAFC 132
M and M (1988) 166 CLR 69
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Oakley & Cooper  [2009] FamCAFC 133
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
APPELLANT: Mr Amador
RESPONDENT: Ms Amador
FILE NUMBER: PAC 3619 of 2007
APPEAL NUMBER: EA 8 of 2009
DATE DELIVERED: 3 November 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: May, Coleman and Le Poer Trench JJ
HEARING DATE: 17 August 2009
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 23 December 2008
LOWER COURT MNC: [2008] FMCfam 1407

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Snelling
SOLICITOR FOR THE APPELLANT: Macarthur Law Group
COUNSEL FOR THE RESPONDENT: Mr Harper
SOLICITOR FOR THE RESPONDENT: Jennifer Weate & Associates

Orders

  1. The appeal is allowed.

  2. The orders made by Federal Magistrate Henderson on 23 December 2008 are set aside.

  3. The parties’ applications be remitted for rehearing in the Federal Magistrates Court of Australia before a magistrate other than Federal Magistrate Henderson.

  4. The Court notes that the parties have signed consent orders which they may register in the Federal Magistrates Court.

  5. The Court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act1981 (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 father in respect of the costs incurred by the appellant father in relation…

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Details
AGLC
Amador & Amador [2009] FamCAFC 196
Case
[2009] FamCAFC 196
Decision Date

CaseChat Overview and Summary

The appeal before the court involved Amador, the father, and Amador, the mother, who were engaged in a dispute over the care and custody of their child. The matter was heard and determined by Federal Magistrate Henderson on 23 December 2008, and the father subsequently appealed the decision to the Federal Court. The central issue before the court was whether the Federal Magistrate erred in the determination of the child’s care and custody.

The court considered whether the Federal Magistrate had correctly applied the relevant statutory provisions and case law in making the orders concerning the child's care and custody. The court also examined whether the magistrate's decision was supported by the evidence presented and whether there were any procedural irregularities that could have influenced the outcome. In reviewing the decision, the court found that the Federal Magistrate had not appropriately considered certain evidence and had made errors in the application of the relevant law. Consequently, the court concluded that the appeal should be allowed and the original orders set aside.

In light of these findings, the court allowed the appeal, set aside the orders made by the Federal Magistrate, and remitted the matter for rehearing before a different magistrate in the Federal Magistrates Court. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth), recognising the costs incurred by both the father and the mother in relation to the appeal and the anticipated new hearing.

Orders

Orders of the court

1.

The appeal is allowed.

2.

The orders made by Federal Magistrate Henderson on 23 December 2008 are set aside.

3.

The parties’ applications be remitted for rehearing in the Federal Magistrates Court of Australia before a magistrate other than Federal Magistrate Henderson.

4.

The Court notes that the parties have signed consent orders which they may register in the Federal Magistrates Court.

5.

The Court grants to the appellant father a costs certificate pursuant to the provisions of 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 father in respect of the costs incurred by the appellant father in relation to the appeal against the orders of Federal Magistrate Henderson made 23 December 2008.

6.

The Court grants to the respondent mother a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by the respondent mother in relation to the appeal against the orders of Federal Magistrate Henderson made 23 December 2008.

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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new hearing granted by these orders.

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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