FAMILY COURT OF AUSTRALIA
| COOPER & OAKLEY (NO. 2) | [2012] FamCAFC 187 |
| FAMILY LAW – APPEAL – CHILDREN – where the appellant mother appealed against orders placing the children with the respondent father – where the appellant abandoned one ground of appeal in written submissions and a further ground was abandoned during oral submissions – where the remaining grounds of appeal related to weight – where the challenged findings of the Federal Magistrate do not fall outside the generous ambit within which disagreement is possible. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 Supplementary Explanatory Memorandum, Federal Magistrates (Consequential Amendments) Bill 1999 |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 CDJ v VAJ (1998) 197 CLR 172 G & G [2004] FamCA 1179 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Cooper |
| RESPONDENT: | Mr Oakley |
| INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
| FILE NUMBER: | BRC | 8588 | of | 2008 |
| APPEAL NUMBER: | NA | 8 | of | 2012 |
| DATE DELIVERED: | 15 November 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Thackray and Murphy JJ |
| HEARING DATE: | 9 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 22 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1422 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Edwards |
| SOLICITOR FOR THE APPELLANT: | Bradley Munt & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Stephens & Tozer Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Lyons |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Forest Glen Lawyers |
Orders
The appeal against the orders made by Federal Magistrate Baumann on
22 December 2011 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed in writing between the parties within 21 days of the date of these Orders or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cooper & Oakley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 8 of 2012
File Number: BRC 8588 of 2008
| Ms Cooper |
Appellant
And
| Mr Oakley |
Respondent
SHORT REASONS FOR DECISION
The Full Court is of the opinion that the appeal does not raise any question of general principle.
The Court’s reasons in short form are as follows.
Background
The mother of M (born in April 2000) and X (born in April 2002) appeals orders made by Baumann FM on 22 December 2011 after a trial pertaining to parenting orders in respect of those children.
The trial before his Honour occurred after a very lengthy period of conflict between the parties. That conflict had manifested itself in numerous proceedings in the Federal Magistrates Court as set out in his Honour’s Reasons.
For reasons set out clearly in his judgment, his Honour had significant concern about each party’s capacity to parent as…
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- AGLC
- COOPER & OAKLEY (NO. 2) [2012] FamCAFC 187
- Case
- [2012] FamCAFC 187
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation and enforcement of the orders made by the Federal Magistrate. The appellant sought to challenge the orders, particularly the costs awarded to the respondent. The court needed to determine whether the appeal against these orders was justified and, if not, whether the appellant should be liable for the respondent's costs of and incidental to the appeal.
In its reasoning, the court found that the appeal was without merit and did not warrant a departure from the orders made by the Federal Magistrate. The court emphasised the principle that unsuccessful parties should not lightly escape the consequences of their litigation choices. As a result, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of and incidental to the appeal as agreed between the parties or, if no agreement was reached, as assessed by the court.
Orders
Orders of the court
1.
The appeal against the orders made by Federal Magistrate Baumann on
22 December 2011 be dismissed.
2.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed in writing between the parties within 21 days of the date of these Orders or, failing agreement, as assessed.
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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