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.
The orders made by Federal Magistrate Henderson on 23 December 2008 are set aside.
The parties’ applications be remitted for rehearing in the Federal Magistrates Court of Australia before a magistrate other than Federal Magistrate Henderson.
The Court notes that the parties have signed consent orders which they may register in the Federal Magistrates Court.
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…
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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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.