COOMBE & STONE - [2010] FamCAFC 132

FAMILY COURT OF AUSTRALIA

COOMBE & STONE

[2010] FamCAFC 132

FAMILY LAW - APPEAL – CHILDREN – Appeal from decision of Family Law Magistrate – Interim parenting orders – Application to change the child’s school – Where the mother had previously been ordered to return to “the Perth metropolitan area” – Where the mother returned to an eastern suburb of Perth rather than the southern suburb intended by the Court – Change of circumstances – The mother could only obtain a practical placement in the eastern suburb – The mother could not complete her tertiary qualification if she was required to give up the practical placement – The father’s time with the child would not be affected by the mother’s proposal – The mother should not be expected to cease her studies – Magistrate failed to consider the change of circumstances adequately – Magistrate placed too much weight on the inconvenience to the father if there was a change of school – Appeal allowed – Re-determination of Magistrate’s decision – Change of school allowed

FAMILY LAW - PRACTICE AND PROCEDURE – ORDERS – Variation – Magistrate’s new order further limited the area within which the mother could live – Slip rule not available as the order made was the order intended – The mother would have been unable to appeal the original order as an appeal must be directed against orders and not the intention behind the orders – Magistrate’s power to vary the original order questioned

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

AMS v AIF (1999) 199 CLR 160

APPELLANT:

Ms Coombe

RESPONDENT:

Mr Stone

FILE NUMBER:

PTW

6238

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

14 July 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

29 June 2010

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

14 April 2010

LOWER COURT MNC:

Unreported, Magistrates Court of Western Australia, Kaeser AM, 18 March 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Grasso

SOLICITOR FOR THE APPELLANT:

Milsteed Grasso

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Kim Wilson & Co

Orders

The appeal be allowed.
Orders 2 and 4 made by Acting Magistrate Kaeser on 14 April 2010 be set aside.
The appellant and the respondent do all things necessary for the child, [the child], born … December 2004, to be enrolled at and attend [the eastern suburb school].
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions 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.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6…

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

AGLC: COOMBE & STONE [2010] FamCAFC 132
Case: [2010] FamCAFC 132
Decision Date: 14 July 2010

CaseChat Overview and Summary

The appeal was brought by the mother against a decision made by a Family Law Magistrate regarding interim parenting orders, specifically concerning the child's school placement. The mother had previously been ordered to return to the Perth metropolitan area, but she moved to an eastern suburb instead of the intended southern suburb. The father objected to this change, arguing that it would affect his time with the child. The mother contended that the change of circumstances warranted the relocation, as she could only secure a practical placement in the eastern suburb for her studies, and that her education was crucial for her future career prospects.

The court was required to determine whether the Magistrate had adequately considered the change of circumstances and if the mother's relocation to the eastern suburb was justified. The court also had to assess whether the Magistrate's decision adequately balanced the mother's need to complete her studies against the father's interests. Additionally, the court examined the Magistrate's power to vary the original order and whether the Magistrate had correctly applied the principles of family law in making the decision.

The appeal was allowed by the court, which found that the Magistrate had not adequately considered the change of circumstances and had placed too much weight on the father's inconvenience. The court held that the mother's ability to complete her studies and secure a practical placement was a significant factor that warranted changing the child's school. The court also noted that the father's time with the child would not be adversely affected by the change. The court further determined that the Magistrate's power to vary the original order was not in question, as the order made was the intended order, and the slip rule was not applicable. The court set aside the Magistrate's orders and granted new orders that the child should be enrolled in and attend the eastern suburb school. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

The appeal be allowed.

Orders 2 and 4 made by Acting Magistrate Kaeser on 14 April 2010 be set aside.

The appellant and the respondent do all things necessary for the child, [the child], born … December 2004, to be enrolled at and attend [the eastern suburb school].

There be no order for costs in relation to the appeal.

The Court grants to the appellant a costs certificate pursuant to the provisions 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.

The Court grants to the respondent 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.

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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