Browne & Keith

Case [2015] FamCAFC 143

FAMILY COURT OF AUSTRALIA

BROWNE & KEITH [2015] FamCAFC 143

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the orders appealed are interim – Where the mother had lived in Western Australia until the commencement of her relationship with the father – Where the parties lived together in northern New South Wales – Where the parties agreed to return with the child to Western Australia whether as a family or if separated – Whether the trial judge erred by failing to identify the source of power used to make orders – Where the trial judge erred by finding that the mother had “unilaterally” relocated to Western Australia – Where the trial judge relied on a misstatement of law – Where the trial judge failed to give weight to serious matters such as the father’s drug abuse and mental health – Where the trial judge uncritically accepted the father’s evidence – Where the mother has no financial or emotional support and limited access to housing in New South Wales – Where the trial judge failed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia – Appeal allowed.

FAMILY LAW – APPEAL – Costs – Where the parties sought costs certificates – Where the appeal has succeeded on a question of law – Costs certificates ordered for the mother and the father – Where the contribution of the Independent Children's Lawyer to the appeal hearing was such that it is not appropriate to make an order for a costs certificate in her favour – Application of the Independent Children’s Lawyer dismissed.
Family Law Act 1975 (Cth) s 60CC, s 68B, s 114(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 6, s 8, s 9
MRR v GR (2010) 240 CLR 461
APPELLANT: Ms Browne
RESPONDENT: Mr Keith
INDEPENDENT CHILDREN’S LAWYER: Barbara J Garrick
FILE NUMBER: NCC 2905 of 2014
APPEAL NUMBER: EA 55 of 2015
DATE DELIVERED: 24 July 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Ainslie-Wallace & Loughnan JJ
HEARING DATE: 1 July 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 27 March 2015
LOWER COURT MNC: [2015] FCCA 1496

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Clifford
SOLICITOR FOR THE APPELLANT: Bannerman Solicitors
COUNSEL FOR THE RESPONDENT: Mr Graham
SOLICITOR FOR THE RESPONDENT: Flintoff Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Bates
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brennan Garrick Lawyers

Orders

  1. Appeal against the orders of Judge Myers made on 27 March 2015 be allowed and the orders be set aside.

  2. Remit the matter for re-hearing before a judge of the Federal Circuit Court other than Judge Myers.

  3. The Court grants to the appellant mother 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…

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Browne & Keith [2015] FamCAFC 143
Case
[2015] FamCAFC 143
Decision Date

CaseChat Overview and Summary

In this case, the appellant, the mother, and the respondent, the father, were involved in a dispute over the relocation of their child. The matter was heard in the Family Court of Australia. The mother appealed against the interim orders made by Judge Myers on 27 March 2015, which required her to return with the child to New South Wales. The mother had lived in Western Australia until the commencement of her relationship with the father, and the parties had lived together in northern New South Wales. They had agreed to return to Western Australia, either as a family or if separated.

The legal issues before the court were whether the trial judge erred in failing to identify the source of power used to make the orders, finding that the mother had "unilaterally" relocated to Western Australia, relying on a misstatement of law, failing to give weight to serious matters such as the father's drug abuse and mental health, and uncritically accepting the father's evidence. The court also needed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia, where she had no financial or emotional support and limited access to housing.

The court found that the trial judge erred in several respects. The judge failed to identify the source of power used to make the orders, misstated the law, and did not give sufficient weight to the father's drug abuse and mental health issues. The court also found that the trial judge uncritically accepted the father's evidence and failed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia. The appeal was allowed, and the orders were set aside. The matter was remitted for re-hearing before a judge of the Federal Circuit Court other than Judge Myers. Costs certificates were ordered for both parties, but the application by the Independent Children's Lawyer for a costs certificate was dismissed.

Orders

Orders of the court

1.

Appeal against the orders of Judge Myers made on 27 March 2015 be allowed and the orders be set aside.

2.

Remit the matter for re-hearing before a judge of the Federal Circuit Court other than Judge Myers.

3.

The Court grants to the appellant mother 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.

4.

The Court grants to the respondent father a costs certificate 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 in respect of the costs incurred by him in relation to the appeal.

5.

The Court grants to each of the parties 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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

6.

The application by the Independent Children’s Lawyer for a costs certificate be dismissed.

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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