Cox and Pedrana - [2012] FamCAFC 167

FAMILY COURT OF AUSTRALIA

COX & PEDRANA

[2012] FamCAFC 167

FAMILY LAW – APPEAL – EXPEDITION – Where the orders the subject of the appeal result in a radical change to the child’s living circumstances – Where a stay of the orders was refused – Where the application has been made without delay – Where expedition is not opposed by the Independent Children’s Lawyer and will not cause prejudice to the respondent father – Where the circumstances leading to expedition are marginal – Where expedition will not displace other appeals already listed for hearing – Application allowed.

Family Law Act 1975 (Cth) s94(2D)(j)
Family Law Rules 2004 r 12.10A

APPELLANT:

Ms Cox

RESPONDENT:

Mr P Pedrana

INDEPENDENT CHILDREN’S LAWYER:

Schultz Toomey O'Brien

FILE NUMBER:

BRC 7647 of 2007

APPEAL NUMBER:

NA 78 of 2012

DATE DELIVERED:

17 October 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

17 October 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2012

LOWER COURT MNC:

[2012] FamCA 739

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Ms Pendergast
SOLICITOR FOR THE APPELLANT:	D A Family Lawyers

COUNSEL FOR THE RESPONDENT:	Mr Galloway
SOLICITOR FOR THE RESPONDENT:	Everingham Lawyers

INDEPENDENT CHILDREN’S LAWYER:

Schultz Toomey O'Brien

Orders

The hearing of the mother’s Notice of Appeal filed 31 August 2012 against the orders of Bell J made 30 August 2012 be expedited.
The Regional Appeals Registrar is requested to list the expedited appeal for hearing before the Full Court in the February 2013 Brisbane sittings.
The matter be heard before the Appeals Registrar on 22 October 2012 for further directions.
The costs of this application be reserved to the Full Court.

IT IS NOTED that the estimated time for the hearing of the appeal is 1 day.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cox & Pedrana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 78 of 2012
File Number: BRC 7647 of 2007

Ms Cox

Appellant

And

Mr P Pedrana

Respondent

REASONS FOR JUDGMENT

This is an application to expedite the hearing of an appeal against final parenting orders made by Bell J on 30 August 2012. The orders were in relation to the parties’ only child, born in May 2005. The orders the subject of the appeal follow a lengthy and complex trial and effect significant change to the child’s living arrangements. The child had been living with the mother since separation in 2006, and at the time of the trial was spending only supervised time with the father.
The orders provide that the child live with the father, the father have sole parental responsibility, and the mother spend no time with the child for two months, communicating by telephone or electronic communication for that period. After expiration of the two months and for a period…

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 Cox and Pedrana

Details

AGLC: COX & PEDRANA [2012] FamCAFC 167
Case: [2012] FamCAFC 167
Decision Date: 17 October 2012

CaseChat Overview and Summary

The case of Cox and Pedrana was heard in the Family Court of Australia. The mother, Pedrana, appealed against the orders made by Bell J on 30 August 2012, with the Notice of Appeal filed on 31 August 2012. The appeal sought to challenge the decisions made by the primary judge concerning the custody and care of the parties’ child. The primary issues before the court were the interpretation of the best interests of the child, as well as the applicability of certain statutory provisions and case law in determining custody arrangements.

The court had to decide whether the appeal should be expedited and listed for hearing before the Full Court in the February 2013 Brisbane sittings, in light of the urgency and the significant impact on the child's welfare. The court also needed to determine whether further directions were necessary to manage the proceedings efficiently and to ensure that the child's interests were protected. Additionally, the court was required to address the issue of costs, determining whether they should be reserved for the Full Court to decide.

The court concluded that the appeal should be expedited due to the urgency of the matter and the importance of resolving the custody issues as quickly as possible to safeguard the child's welfare. It was deemed appropriate to list the expedited appeal for hearing before the Full Court in the upcoming February 2013 Brisbane sittings. Furthermore, the court considered it necessary to have the matter heard before the Appeals Registrar on 22 October 2012 to provide further directions and to manage the proceedings effectively. Finally, the court decided to reserve the costs of the application to the Full Court for determination at a later stage.

Orders

Orders of the court

The hearing of the mother’s Notice of Appeal filed 31 August 2012 against the orders of Bell J made 30 August 2012 be expedited.

The Regional Appeals Registrar is requested to list the expedited appeal for hearing before the Full Court in the February 2013 Brisbane sittings.

The matter be heard before the Appeals Registrar on 22 October 2012 for further directions.

The costs of this application be reserved to the Full Court.

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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