FAMILY COURT OF AUSTRALIA
| CALES & CALES | [2010] FamCAFC 237 |
| FAMILY LAW - APPEAL – CHILDREN – Whether the court has power to make an order restraining a mother from moving the children’s home anywhere outside the radius of 30 km from the Sydney GPO – Consideration of Sampson & Hartnett (No. 10) (2008) 38 Fam LR 315 and MRR v GR (2010) 240 CLR 461 – Power to make an order restraining the removal of children from a particular location exists in a court exercising jurisdiction under Part VII of the Family Law Act 1975 (Cth) – No appealable error established. FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge failed to provide adequate reasons for restricting the children’s residence to within a radius of 30 kms from the Sydney GPO – Where the finding by the trial Judge that the mother had undermined the children’s relationship with the father was not open to him on the evidence – Where the trial Judge failed to give adequate reasons why the restraint on the children’s residence was necessary or appropriate – Appealable error established. FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge erred in determining that the father spending substantial and significant time with the children could only occur if the mother lived within a 30 km radius of the Sydney GPO – No error in the trial Judge’s finding that substantial and significant time with the father was not possible if the children resided in the Hunter Valley – Whether the trial Judge erred in considering the children’s “best interest” in the context of s 60CC but not in the context of s 65DAA – Whether the trial Judge erred in not considering whether an order would be “reasonably practicable” in the context of s 65DAA – Where the trial Judge failed to adequately consider the practical and economic aspects associated with the mother residing in Sydney – Appealable error established. FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge erred by failing to examine alternatives that might enable the development of a meaningful relationship between the children and their father – Where the mother is the undisputed primary caregiver – Where the trial Judge did not consider whether a meaningful relationship could be maintained between the father and the children if the children resided in the Hunter Valley – Appealable error established. FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO AMEND NOTICE OF APPEAL – Where the respondent father did not seek adjournment – Where the respondent father did not seek to file additional material – Application allowed. FAMILY LAW - APPEAL – COSTS – Appellant’s success on appeal arose because of errors by the trial Judge – Appropriate to grant certificates to both parties under Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing. |
| Family Law Act 1975 (Cth) ss 60CC(2) and (3), 64B, 64C, 65D, 65DAA, 65DAC, 65DAE, 68B, 69H(1) |
Continue reading Cales & Cales
Sign in free to access the full text
- AGLC
- Cales & Cales [2010] FamCAFC 237
- Case
- [2010] FamCAFC 237
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the Family Court had the power to make an order restricting the children's residence outside a 30 km radius from the Sydney GPO, whether the trial judge provided adequate reasons for the residence restriction, whether the trial judge erred in determining that the father's substantial and significant time with the children could only occur if the mother lived within the specified radius, and whether the trial judge failed to consider alternatives that could enable the development of a meaningful relationship between the children and their father. The court also considered whether the trial judge erred in not examining the practical and economic aspects associated with the mother residing in Sydney and whether the trial judge adequately considered the children's "best interest" in the context of the relevant sections of the Family Law Act.
The court found that the Family Court did have the power to make such an order, but that the trial judge's reasons for the residence restriction were inadequate, and that the trial judge erred in determining that the father's contact with the children was contingent on the mother's residence within a 30 km radius of the Sydney GPO. The court also found that the trial judge failed to adequately consider the practical and economic aspects of the mother residing in Sydney and did not consider alternatives that could maintain a meaningful relationship between the children and their father. The appeal was allowed, and the orders were set aside, pending re-hearing before a different judge in the Sydney Registry. The court also granted costs certificates to both parties for the appeal and the re-hearing.
The orders of the court were to allow the appeal, set aside certain orders made by the trial judge, stay the setting aside of those orders pending re-hearing, remit the mother's application for parenting orders for re-hearing before a different judge, expedite the re-hearing, and grant costs certificates to both parties for the appeal and the re-hearing.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Subject to Order 3, that Orders 2 and 6 of the Honourable Justice Cohen made 24 December 2008 be set aside.
3.
The setting aside of Orders 2 and 6 of the Honourable Justice Cohen made 24 December 2008 be stayed pending further order of a Judge at first instance.
4.
The mother’s application for parenting orders be remitted for re-hearing before a Judge in the Sydney Registry other than the Honourable Justice Cohen.
5.
The re-hearing of the mother’s parenting application be expedited.
6.
The Court grants to the appellant mother a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
7.
The Court grants to the respondent father a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.
8.
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 them in relation to the new trial ordered.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.