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CAMERON & BROOK

CAMERON & BROOK

Case [2018] FamCAFC 175 13 September 2018

Appeal

Parental Responsibility

Best Interests of the Child

Family Law

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FAMILY COURT OF AUSTRALIA

CAMERON & BROOK

[2018] FamCAFC 175

FAMILY LAW – APPEAL – PARENTAL RESPONSIBILITY – Where the mother filed an application to allow the child to participate in an overseas exchange programme – Where the primary judge determined that he lacked power to make the orders sought – Where the Court had power – Where the Court’s powers are enlivened if its jurisdiction is properly invoked – Where the circumstances are not analogous to a case invoking the “rule in Rice and Asplund” – Where the primary judge did not consider the application on its merits – Where the primary judge allowed extraneous matters to determine the result rather than a determination of what was in the child’s best interests – Where it was in the child’s best interests to allow her the opportunity to be chosen for the programme – Appeal allowed – Order for costs made against the father.

Family Law Act 1975 (Cth) ss 60B(2)(d), 60I, 61B, 61D, 61DA, 64B, 65D, 65DAC, 69H(4)

Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Freeman and Freeman (1987) FLC 91-857; [1986] FamCA 23
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
McEnearney and McEnearney (1980) FLC 90-866; [1980] FamCA 43
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

APPELLANT:

Ms Cameron

RESPONDENT:

Mr Brook

FILE NUMBER:

BRC

2216

2014

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

13 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

12 September 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2018

LOWER COURT MNC:

[2018] FCCA 2536

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wilson QC

SOLICITOR FOR THE APPELLANT:

Damien Greer Lawyers

COUNSEL FOR THE RESPONDENT:

The Hon. Mr Foley

SOLICITOR FOR THE RESPONDENT:

HopgoodGanim Lawyers

IT IS ORDERED BY CONSENT THAT

The hearing of the appeal be expedited so as to permit it to be heard by the Full Court on 12 September 2018.

IT IS ORDERED THAT

The appeal be allowed.
The order made by Judge Coates on 30 August 2018 be set aside.
The appellant’s application to adduce further evidence be dismissed.
The respondent pay the appellant’s costs fixed in the sum of $11,192.35, such sum to be paid within twenty-one (21) days of the date of these orders.

until further order

Paragraph 1 of the orders made by consent on 27 July 2015 be varied by adding thereto a sub-paragraph as follows:
(a) Notwithstanding the said order for equal shared parental responsibility, the mother of K born in 2004 shall have sole authority and responsibility for authorising the participation of the said child in the process of selection for inclusion in the exchange programme at G School.
So as to give effect…

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.

Continue reading CAMERON & BROOK

Details

AGLC: CAMERON & BROOK [2018] FamCAFC 175
Case: [2018] FamCAFC 175
Decision Date: 13 September 2018

CaseChat Overview and Summary

In this matter, the mother sought an order to permit their daughter to participate in an overseas exchange programme. The father opposed the application, arguing it should be dismissed on the basis that the Family Court did not have the requisite jurisdiction. The case was heard and determined by the Family Court of Australia, and subsequently appealed to the Full Court of the Family Court of Australia. The central issue for the Full Court was whether the primary judge correctly assessed his jurisdiction to entertain the mother’s application and if the Court’s powers were properly invoked under the Family Law Act 1975 (Cth). Furthermore, the Court had to determine if the primary judge erred by not considering the application on its merits and allowing extraneous factors to influence his decision, rather than focusing on what was in the best interests of the child.

The Full Court began by noting that the Family Court indeed possesses the necessary jurisdiction to consider applications pertaining to parental responsibility. The Court held that the primary judge misconstrued his jurisdiction, as the Court's powers are indeed activated when the circumstances of a case fall within the provisions of the Family Law Act. The Court emphasised that the case was not analogous to those invoking the "rule in Rice and Asplund", which pertains to disputes over the administration of a child’s estate. The Full Court criticised the primary judge for not evaluating the application on its merits and instead allowing unrelated issues to sway his decision. The Court found that it was in the child’s best interests to allow her the opportunity to be considered for the overseas exchange programme, thereby reversing the primary judge's decision.

The Full Court allowed the appeal and made an order for costs against the father. The reasoning was grounded in the belief that the primary judge failed to properly exercise his jurisdiction and assess the application based on the child's best interests. By addressing these errors, the Full Court aimed to ensure that future proceedings are conducted with a focus on what truly benefits the child, in accordance with the overarching principles of the Family Law Act.

Orders