Bostoi & Bostoi

Case [2011] FamCAFC 132

FAMILY COURT OF AUSTRALIA

BOSTOI & BOSTOI [2011] FamCAFC 132

FAMILY LAW - APPEAL – CHILDREN – With whom a child lives and spends time – Where the trial Judge ordered the children to live with the respondent mother – Whether the trial Judge erred in her findings and assessment of the psychiatric evidence – Whether the trial Judge made material errors of fact, and by reason of delay in giving judgment, failed to properly consider the evidence – Whether the trial Judge failed to take into account the views of one child – Whether the trial Judge failed to consider the unchallenged evidence of the father in relation to the mother’s psychiatric ill health –  No appealable error established.

FAMILY LAW - COSTS – Appellant ordered to pay the respondent’s costs of and incidental to the appeal – No order for costs in relation to the Independent Children Lawyer’s appearance.

Family Law Act 1975 (Cth)
De Winter & De Winter (1979) FLC 90-695
Hadid v Redpath [2001] NSWCA 416
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640
APPELLANT: Mr Bostoi

RESPONDENT:

 Ms Bostoi
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
FILE NUMBER: SYC 2851 of 2009
APPEAL NUMBER: EAA 155 of 2010

DATE DELIVERED:

 17 June 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Coleman, Ainslie-Wallace and Murphy JJ
HEARING DATE: 18 May 2011
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 27 October 2010
LOWER COURT MNC: [2010] FamCA 992

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Schonell SC
SOLICITOR FOR THE APPELLANT: Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT: Mr Simpson SC and Ms Nash
SOLICITOR FOR THE RESPONDENT: Feeney Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

Ms Christie

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

 Legal Aid NSW

Orders

  1. That the appeal be dismissed.

  2. That the appellant pay the respondent’s costs of and incidental to the appeal.

  3. That there be no other order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Bostoi & Bostoi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:       EAA 155 of 2010
File Number:            SYC 2851 of 2009

Mr Bostoi

Appellant

And

Ms Bostoi

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

  1. Mr Bostoi (“the father”) appeals against parenting orders made in relation to the two children of his relationship with Ms Bostoi (“the mother”), C (born in September 1997) and L (born in April 2001).

  2. The orders made on 27 October 2010 provided for the parties to have equal shared parenting of the two children and that the children live with the father each alternate weekend, each alternate Wednesday night during school term and half of each school holiday period.  The orders also made provision for the children to spend time with the father at other times.

  3. The father’s appeal challenges the order that…

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Details
AGLC
Bostoi & Bostoi [2011] FamCAFC 132
Case
[2011] FamCAFC 132
Decision Date

CaseChat Overview and Summary

The appeal in Bostoi & Bostoi concerned a family law dispute between the parents of children, with the primary issue being the residence and care of the children. The trial judge had ordered the children to live with the mother, and the father, the appellant, contested this decision. The appeal before the court questioned the trial judge's findings and assessment of psychiatric evidence, and whether there were material errors of fact, including the delay in delivering judgment, the failure to consider the views of one child, and the omission to address the father's evidence regarding the mother's psychiatric health. The court was tasked with determining whether these alleged errors warranted overturning the trial judge's decision.

The court examined the arguments presented by the appellant, including the alleged errors in the trial judge's assessment of psychiatric evidence, the failure to consider the views of one child, and the delay in delivering judgment. It was noted that the trial judge had considered the psychiatric evidence in detail and had provided reasons for her findings. The court found that the trial judge had not made material errors of fact and had properly considered the evidence before her, including the father's evidence of the mother's psychiatric health. The court further held that the delay in delivering judgment did not affect the outcome, as the trial judge had fully considered all the evidence.

The court concluded that no appealable error was established in the trial judge's decision. Therefore, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal. The court determined that there should be no order as to costs in relation to the Independent Children's Lawyer's appearance. The trial judge's decision that the children live with the mother remained in place, and the father's appeal was unsuccessful.

Orders

Orders of the court

1.

That the appeal be dismissed.

2.

That the appellant pay the respondent’s costs of and incidental to the appeal.

3.

That there be no other order as to costs.

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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