FAMILY LAW – CHILDREN – APPEAL – CHILDREN – FINAL PARENTING ORDERS – where the trial judge made an order that the father spend no time nor communicate with the child – best interests of the child balanced with perceived risk – where the trial judge failed to properly enunciate his reasoning – appeal allowed – remitted for rehearing before a judge other than the trial judge.
FAMILY LAW – APPEAL – COSTS – cost certificate issued.
Cochrane & Peterson[2008] FamCA 597 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 N and S & the Separate Representative (1996) FLC 92-655 Redmond & Redmond[2014] FamCAFC 155 Russell & Close (unreported Full Court, 25 June 1993) Sedgley & Sedgley (1995) FLC 92-623 Slater & Light (2013) 48 Fam LR 573 Vakauta v Kelly (1989) 167 CLR 568
The Orders made by Judge Coates on 30 May 2014 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for re-hearing before a judge other than Judge Coates.
The Court grants to the father a costs certificate pursuant to s 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 him in respect of the costs incurred by him in relation to the appeal.
The Court grants to the father, mother and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 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 in relation to the re-hearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Blinko & Blinko has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
Appeal Number: NA 30 of 2014
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
Blinko & Blinko [2015] FamCAFC 146
Case
[2015] FamCAFC 146
Decision Date
CaseChat Overview and Summary
In the Federal Court of Australia, the matter of Blinko & Blinko was brought forth as an appeal against a decision made by Judge Coates on 30 May 2014. The dispute involved a parenting case, where the father sought to challenge certain orders regarding the custody and care of his children. The case was brought to the Federal Court to review the decisions and actions taken by the lower court, focusing on the legal principles and procedural fairness applied.
The legal issues before the court were primarily centered on whether Judge Coates' decision was fair and whether there were any procedural errors that could have impacted the outcome. Specifically, the court needed to determine if the lower court had correctly exercised its discretion under the Family Law Act, and if the decision-making process was transparent and just. Furthermore, the court had to consider whether the presence of the Independent Children’s Lawyer during certain proceedings was necessary and if the father's right to a fair hearing was compromised.
The court found that the decision made by Judge Coates contained errors and was not in line with the applicable legal standards. The court held that the lower court had not adequately justified its decision, leading to a miscarriage of justice. The court further determined that the presence of the Independent Children’s Lawyer during specific proceedings was inappropriate and that the father’s right to a fair hearing was indeed compromised. Consequently, the appeal was allowed, and the original orders were set aside. The matter was remitted to the Federal Circuit Court for a re-hearing before a different judge to ensure impartiality and fairness. Additionally, the court granted costs certificates to the father, the mother, and the Independent Children’s Lawyer for the appeal and the anticipated re-hearing, recognising the financial burden these proceedings placed on the parties involved.
Orders
Orders of the court
1.
The Appeal be allowed.
2.
The Orders made by Judge Coates on 30 May 2014 be set aside.
3.
The matter be remitted to the Federal Circuit Court of Australia for re-hearing before a judge other than Judge Coates.
4.
The Court grants to the father a costs certificate pursuant to s 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 him in respect of the costs incurred by him in relation to the appeal.
5.
The Court grants to the father, mother and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 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 in relation to the re-hearing.