Best & Best

Case [2021] FamCAFC 13

FAMILY COURT OF AUSTRALIA

Best & Best [2021] FamCAFC 13

Appeal from: Best & Best [2020] FCCA 628
Appeal number(s): EAA 47 of 2020
File number(s): PAC 5790 of 2015
Judgment of: AINSLIE-WALLACE, ALDRIDGE & WATTS JJ
Date of judgment: 11 February 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Rebuttal of presumption of equal shared parental responsibility – Best interests of the child – Relocation – Restraint – Reasons given in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – Adequate reasons – Appeal dismissed – Appellant father to pay the respondent mother’s costs of the appeal.
Legislation: Family Law Act 1975 (Cth) ss 60CC(3), 94AAA(7)
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Misfud v Campbell (1991) 21 NSWLR 725

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Division: Appeal Division
Number of paragraphs: 44
Date of hearing: 1 February 2021
Place: Sydney
Counsel for the Appellant: Mr O’Brien
Solicitor for the Appellant: Joseph Grassi & Associates
Counsel for the Respondent: Mr Reeves
Solicitor for the Respondent: Reid Legal Pty Ltd

ORDERS

EAA 47 of 2020
PAC 5790 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR BEST

Appellant
AND:

MS BEST

Respondent

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & WATTS JJ

DATE OF ORDER:

11 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The appeal against the orders of a judge of the Federal Circuit Court made on 20 March 2020 is dismissed.

2.The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $5,896 within twenty-eight (28) days of the date of these orders.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Best & Best has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AINSLIE-WALLACE, ALDRIDGE & WATTS JJ:

  1. On 20 March 2020 a judge of the Federal Circuit Court made final parenting orders in proceedings between Ms Best (“the mother”) and Mr Best (“the father”) in relation to X and Y (“the children”).  Those orders include that the mother is to have sole parental responsibility for the children, who are to live with her and spend time with the father.  By his Amended Notice of Appeal filed on 9 June 2020 the father appeals those orders.

    BACKGROUND

  2. To give…

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Best & Best [2021] FamCAFC 13
Case
[2021] FamCAFC 13
Decision Date

CaseChat Overview and Summary

In the appeal, Mr Best contested final parenting orders made by a judge of the Federal Circuit Court on 20 March 2020 in proceedings between him and Ms Best concerning their children, X and Y. The orders provided that the mother have sole parental responsibility for the children who were to live with her and spend time with the father. The father appealed these orders, contending that the presumption of equal shared parental responsibility had not been rebutted, that the relocation of the mother and children had not been properly considered, and that the mother should not have been granted sole parental responsibility. The appeal was dismissed by the Family Court of Australia.

The legal issues for determination were whether the primary judge had erred in failing to rebut the presumption of equal shared parental responsibility, in not considering the relocation of the mother and children properly, and in awarding sole parental responsibility to the mother. The appeal court found that the primary judge's reasons were adequate and that his decision was not plainly wrong. The court held that the primary judge had properly considered the evidence and had given adequate reasons for his decision to award sole parental responsibility to the mother. The appeal court found no error in the primary judge's decision.

The appeal court found that the primary judge had properly considered the evidence concerning the children's best interests and the relocation of the mother and children. The court held that the primary judge's reasons were adequate and that his decision was not plainly wrong. The appeal court found that the primary judge had properly exercised his discretion in awarding sole parental responsibility to the mother and that the decision was in the children's best interests. The appeal court dismissed the father's appeal and ordered the father to pay the mother's costs of the appeal in the sum of $5,896.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal against the orders of a judge of the Federal Circuit Court made on 20 March 2020 is dismissed.

2. The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $5,896 within twenty-eight (28) days of the date of these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

On 20 March 2020 a judge of the Federal Circuit Court made final parenting orders in proceedings between Ms Best (“the mother”) and Mr Best (“the father”) in relation to X and Y (“the children”). Those orders include that the mother is to have sole parental responsibility for the children, who are to live with her and spend time with the father. By his Amended Notice of Appeal filed on 9 June 2020 the father appeals those orders.BACKGROUND To give context to the issues agitated on the appeal it is helpful to provide some background and history of the litigation taken from the evidence in the proceedings before the primary judge. The parties commenced a relationship in November 2007 and were married in April 2010. There are two children of that relationship who are the subject of these proceedings. The mother had two children from a former relationship, J and A. Also living with the parties was B, the mother’s niece who was placed in the mother’s care in 2013 by the relevant child welfare authority when B was just seven weeks old. She has continued to live in the mother’s household. In December 2015 the parties consented to final parenting orders which provided for them to have equal shared parental responsibility for the children, for the children to live with the mother and spend time with the father. From that time until May 2017, the children spent time with the father, each alternate weekend and generally one or two additional nights per fortnight. In May 2017, without notice to or the consent of the father, the mother and children moved to live in an area south-east of Sydney which was some distance from the home in which she and the children had previously lived. The mother sold that property and apparently used the proceeds to purchase another house with her then partner. On the father’s urgent application in July 2017, orders were made that the children be returned to within 5 kilometres of the boundary of Town C and in default of the mother and children returning, the children were to live with the father and spend time with the mother. The mother did not then return to Town C and accordingly the children moved to live with the father and spent time with the mother on each alternate weekend and in school holidays. The mother returned to Town C in April 2019 and was, at the time of the hearing before the primary judge, living in rental accommodation in Town C. Although on her return to Town C the mother sought that the children be returned to her care in accordance with the earlier orders of July 2017, that order was not made and the parties consented to a stay of those earlier orders in June 2019 pending the final hearing before the primary judge which was listed in November 2019. The children continued to reside with the father. The primary judge’s orders in March 2020 had the effect of the children returning to live with the mother who was to have sole parental responsibility and for them to spend time with the father.THE APPEAL

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground will fail.CONCLUSION AND COSTS Thus the appeal will be dismissed. In the event that the appeal failed, the mother sought an order that the father pay her costs of and incidental to the appeal and that order was not opposed. Thus we will order the father to pay the mother’s costs fixed in the sum of $5,896.

Ratio Decidendi

Legal Principle Established

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