FAMILY COURT OF AUSTRALIA
| COX & PEDRANA | [2013] FamCAFC 48 |
| FAMILY LAW – APPEAL – CHILDREN – where mother appeals from orders of trial Judge placing the child in the father’s care – where the trial Judge made an order that the father have sole parental responsibility for the child – where the trial Judge did not address the presumption contained in s 61DA of the Family Law Act 1975 (Cth) – where the reasons are insufficient to infer that the trial Judge had regard to the mandatory presumptions and considerations contained in Part VII regarding parental responsibility – where the trial Judge referred to the Full Court decision of Rosa & Rosa [2009] FamCAFC 81 but did not refer to the High Court decision of MRR v GR (2010) 240 CLR 461 which overturned the Full Court decision – whether his Honour erred in law – where his Honour erred by failing to address the presumption contained in s 61DA and erred in applying the Full Court decision in Rosa without having regard to the principles contained in the High Court decision which overturned it. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Rules 2004 |
| Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1 CDJ v VAJ (1998) 197 CLR 172 Heaton & Heaton [2012] FamCAFC 139 Kuru v New South Wales (2008) 236 CLR 1 Maluka & Maluka (Costs) [2011] FamCAFC 187 MRR v GR (2010) 240 CLR 461 Re F(Children) [2012] EWCA Civ 828 Sayer & Radcliffe [2012] FamCAFC 209 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 Taylor v Barker (2007) 37 Fam LR 461 Yates & Yates (Independent Children's Lawyer – Costs) [2012] FamCAFC 219 |
| APPELLANT: | Ms Cox |
| RESPONDENT: | Mr Pedrana |
| INDEPENDENT CHILDREN’S LAWYER: | Schultz Toomey O’Brien |
| FILE NUMBER: | BRC | 7647 | of | 2007 |
| APPEAL NUMBER: | NA | 78 | of | 2012 |
| DATE DELIVERED: | 27 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 20 February 2013 |
| 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: | Dr Brasch |
| SOLICITOR FOR THE APPELLANT: | D A Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | Everingham Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER | Mr Thiele |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER | Schultz Toomey O’Brien |
Orders
The appeal be allowed.
Subject to paragraph 7 of these orders, the orders of Bell J made 30 August 2012 be set aside.
The proceedings for parenting orders be remitted for re-hearing by a judge of the Family Court of Australia other than Bell J.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) being a certificate that, in the opinion of the Court, it would be appropriate for…
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- AGLC
- COX & PEDRANA [2013] FamCAFC 48
- Case
- [2013] FamCAFC 48
- Decision Date
CaseChat Overview and Summary
The court needed to determine whether there was a significant error in the way the evidence was considered, and whether this led to an unjust outcome. The appeal hinged on whether the trial judge's approach to the evidence was flawed and whether the orders made were unreasonable. The court also had to consider whether the proceedings should be remitted for re-hearing by a different judge.
The court found that there were significant errors in the way the evidence was considered and that the outcome was unreasonable. It held that the trial judge had not appropriately evaluated the evidence and had thereby failed to make the orders that would be in the best interests of the child. As a result, the appeal was allowed, and the orders made by Bell J were set aside. The case was remitted for re-hearing by a different judge to ensure a fair process. The court also made orders regarding costs, granting certificates to each party for costs associated with the appeal and the new trial.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Subject to paragraph 7 of these orders, the orders of Bell J made 30 August 2012 be set aside.
3.
The proceedings for parenting orders be remitted for re-hearing by a judge of the Family Court of Australia other than Bell J.
4.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
5.
The Court grants to each of the respondent father and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 6 of the Costs Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the respondent father and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
6.
The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 8 of the Costs Act, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these Orders.
7.
Pending the hearing of the new trial, and until further order, paragraphs 4 to 7, 10, 14, 15 and 18 of Justice Bell’s Orders made on 30 August 2012 shall continue to apply.
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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