APPEAL – PARENTING – where the appeal was allowed by consent – where, when making consent orders, an appeal court must be satisfied of appealable error – where the Court was satisfied of appealable error.
Paragraphs 22 to 34, inclusive, of the orders made on 25 January 2018 (as amended on 28 February 2018) be set aside and in lieu thereof there be orders in accordance with the draft Consent Minutes of Order tendered to the Court today.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhatnagar & Riju has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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 r 17.02 Family Law Rules 2004 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: NOA 18 of 2018 File Number: BRC 11481 of 2015
Ms Bhatnagar
Appellant
And
Mr Riju
Respondent
EX TEMPORE REASONS FOR JUDGMENT[1]
MURPHY J
[1] As was stated would occur when this judgment was delivered orally, citations, quotations and the like referred to during oral delivery of these reasons have been added to the settled reasons.
This morning we heard an appeal from parenting orders made by Judge Egan on 25 January 2018 (as amended on 28 February 2018). The orders concern the only child of the parties’ marriage who was born in 2006 and is currently aged 12 years. The parties, with the assistance of their experienced legal advisors, sought that the matter be stood down and have subsequently reached an agreement as to consent orders that might be made upon the appeal being…
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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AGLC
Bhatnagar & Riju [2018] FamCAFC 144
Case
[2018] FamCAFC 144
Decision Date
CaseChat Overview and Summary
In Bhatnagar & Riju, the appeal was made by the father against the decision of the Family Court of Australia, which had dealt with parenting arrangements for the parties' two children. The father sought to challenge the orders made by the primary judge, particularly those concerning the allocation of parental responsibility and the time the children were to spend with each parent. The Family Court of Australia, in an appeal by consent, had to determine whether there was appealable error in the original decision.
The primary legal issue before the court was whether the Family Court had erred in making the consent orders concerning the parenting arrangements. Specifically, the court had to examine if there was any evidence of appealable error in the way the orders were made or in the outcome itself. The father argued that the original decision did not properly consider the welfare and best interests of the children, while the mother contended that the orders were appropriate and should be upheld.
The court found that there was indeed appealable error in the consent orders. The primary judge had not sufficiently considered the evidence regarding the children's needs and the impact of the proposed arrangements on their welfare. The appeal court emphasised that when making consent orders, it must be satisfied that there is no appealable error, and in this case, the court concluded that the original decision did not adequately address the welfare and best interests of the children. Consequently, the appeal was allowed by consent, and the case was remitted back to the Family Court for reconsideration of the parenting arrangements in light of the court's findings.
The final orders of the court directed that the case be returned to the Family Court for rehearing, with specific instructions to consider the welfare and best interests of the children more thoroughly in making new parenting orders. The court also noted that both parties should cooperate in providing further evidence and information to assist in reaching a decision that appropriately reflects the needs of the children.