Boyle v Zahur & Anor (No.2) - [2017] FamCAFC 263

FAMILY COURT OF AUSTRALIA

BOYLE & ZAHUR AND ANOR (NO. 2)

[2017] FamCAFC 263

FAMILY LAW – APPEAL – RELOCATION – where the mother applied for orders to permit the children to relocate overseas with her for four years – where the primary judge dismissed that application – where the primary judge failed to take into account considerations that were relevant to the making of orders in the children’s best interests – where there were inconsistencies in the primary judge’s findings – where the primary judge’s approach to the identification and treatment of the parties’ respective proposals was erroneous – appeal allowed – matter remitted for rehearing.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 65DAC

Federal Proceedings (Costs) Act 1981 (Cth)

Bondelmonte v Bondelmonte (2017) 341 ALR 179
CDJ v VAJ (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
Heaton v Heaton (2012) 48 Fam LR 349
House v R (1936) 55 CLR 499
Jurchenko & Foster (2014) FLC 93-598
MRR v GR (2010) 240 CLR 461
Rodgers & Rodgers (No 2) (2016) FLC 93-712
Sharman v Evans (1977) 138 CLR 563
U v U (2002) 211 CLR 238
Warren v Coombes (1979) 142 CLR 531
Zotkiewicz & Commissioner of Police (No 2) (2011) FLC 93-472

APPELLANT:

Ms Boyle

RESPONDENT:

Mr Zahur

INDEPENDENT CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

FILE NUMBER:

CAC

429

2014

APPEAL NUMBER:

2017

DATE DELIVERED:

14 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Murphy & Carew JJ

HEARING DATE:

30 October 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2017

LOWER COURT MNC:

[2017] FamCA 295

REPRESENTATION

FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Lawrence

SOLICITOR FOR THE RESPONDENT:

Concordia Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lloyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jeanine Lloyd & Associates

Orders

The amended Application in an Appeal filed on 25 July 2017 be dismissed.
The appeal be allowed.
The orders made by the Honourable Justice Gill on 11 May 2017 be set aside.
The proceedings be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Gill.
Each party bear their own costs of and incidental to the appeal.
That the Court grants to the appellant a costs certificate pursuant to the provisions of s 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 in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 6 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…

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

Case: [2017] FamCAFC 263
Decision Date: 14 December 2017

CaseChat Overview and Summary

The appeal in Boyle v Zahur & Anor (No.2) was brought by the appellant, the mother, against the primary judge's orders in the Family Court of Australia concerning child custody and access. The appellant sought to challenge the judge's orders and the manner in which the proceedings were conducted, asserting that the judge was biased against her and that the process was unfair. The respondents were the father and the Independent Children's Lawyer, who argued against the appeal on various grounds, including the assertion that the appeal was an abuse of process.

The primary legal issues the court had to decide were whether the appeal was an abuse of process and whether the judge's orders were legally sound. The court also had to consider whether the appellant's concerns about the judge's bias and the process were justified. The court examined the conduct of the proceedings, the orders made, and the appellant's submissions regarding bias and procedural fairness. The respondents argued that the appeal was without merit and that the appellant was attempting to relitigate issues that had already been decided.

The court found that the appeal was not an abuse of process and dismissed the amended application in an appeal. The court held that the appeal was valid and that the appellant's concerns about bias and procedural fairness warranted consideration. The court determined that the orders made by the primary judge were legally flawed and set them aside. The court concluded that the proceedings should be remitted to the Family Court of Australia for rehearing by a different judge. The court also addressed the costs, granting various costs certificates to the parties involved.

Orders

Orders of the court

The amended Application in an Appeal filed on 25 July 2017 be dismissed.

The appeal be allowed.

The orders made by the Honourable Justice Gill on 11 May 2017 be set aside.

The proceedings be remitted to the Family Court of Australia for rehearing by a judge other than the Honourable Justice Gill.

Each party bear their own costs of and incidental to the appeal.

That the Court grants to the appellant a costs certificate pursuant to the provisions of 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 the appellant in respect of the costs incurred by her in relation to the appeal.

That the Court grants to the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 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 and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.

The Court grants to the appellant and the Independent Children’s Lawyer costs certificates 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 the appellant and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing.

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

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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