Dacia & Bennington - [2008] FamCAFC 135

FAMILY COURT OF AUSTRALIA

DACIA & BENNINGTON

[2008] FamCAFC 135

FAMILY LAW – APPEAL – From decision of Federal Magistrate – CHILDREN – ADEQUACY OF REASONS – Division 12A proceedings – Federal Magistrate found it was in best interests of child to live with mother – Federal Magistrate ordered child spend less time with mother upon commencing grade one in four years’ time – lack of reasons – whether Federal Magistrate considered s 60CC factors as they might exist in four years’ time – whether Federal Magistrate considered the relationship between child and child’s sibling.

Appeal allowed – court declined to re-exercise discretion or remit for re-hearing – final order converted to interim order – liberty to both parties to apply not before twelve months prior to child commencing grade one – applicant to seek other party to attend alternative dispute resolution prior to commencing proceedings – Costs certificate for the appellant pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 – Costs certificate for the respondent pursuant to s 6 of the Federal Proceedings (Costs) Act 1981

Family Law Act 1975, s 60CC, s 69ZQ(1)(f)
Federal Proceedings (Costs) Act 1981

A v J (1995) FLC 92‑619
Bennett v Bennett (1991) FLC 92‑191
Gilshannon and Giles [2008] FamCAFC 31
Gronow& Gronow (1979) 144 CLR 513
Housing Commission of NSW v Tatmar Pastoral Co [1983] 3 NSWLR 378
King and Finneran (formerly King) (2001) FLC 93-079
Russell v Close (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)
Rice and Asplund (1979) FLC 90-725
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Ms Dacia

RESPONDENT:

Mr Bennington

FILE NUMBER:

LEC

210

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

8 September 2008

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, Thackray and Benjamin JJ

HEARING DATE:

7 August 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 February 2008

LOWER COURT MNC:

[2008] FMCAfam 350

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Hogan

SOLICITOR FOR THE APPELLANT:

Parker and Kissane

COUNSEL FOR THE RESPONDENT:

Mr Burridge

SOLICITOR FOR THE RESPONDENT:

Walters Solicitors

Orders

That the appeal against the orders of Jarrett FM made on 15 February 2008 be allowed.
That paragraph 4 of the orders made on 15 February 2008 be discharged.
That paragraph 3 of the orders made on 15 February 2008 be varied by inserting at the commencement of the order the words “Until further order of the Court,”.
That each party have liberty to apply to the Court at first instance to vary order 3 of the orders made on 15 February 2008, as amended by these orders, with such liberty not to be exercised until 12 months prior to the date on which the child [P], born [in] November 2005, is expected to commence Grade 1.
That as a pre‑condition to either party seeking to exercise the liberty provided for…

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 Dacia & Bennington

Details

AGLC: Dacia & Bennington [2008] FamCAFC 135
Case: [2008] FamCAFC 135
Decision Date: 8 September 2008

CaseChat Overview and Summary

Dacia and Bennington were involved in a family law appeal regarding the custody arrangements for their child. The appeal was against a decision made by the Federal Magistrate which found it was in the best interests of the child to live with the mother. The Federal Magistrate also ordered that the child would spend less time with the mother upon commencing grade one in four years' time. The appeal centred around the adequacy of reasons provided by the Federal Magistrate in reaching their decision. Specifically, it was questioned whether the Federal Magistrate had considered the statutory factors set out in s 60CC and the relationship between the child and their sibling.

The court examined whether the Federal Magistrate had adequately considered the factors relevant to the child's best interests as they might exist in four years' time, and whether the relationship between the child and their sibling was taken into account. The court found that the Federal Magistrate had failed to provide sufficient reasons for their decision, particularly in relation to the factors that might be pertinent in the future and the relationship between the siblings. The court concluded that the lack of reasons was a significant error, which warranted the appeal being allowed.

In response to the appeal, the court declined to re-exercise the discretion or remit the case for a re-hearing. Instead, the court allowed the appeal and varied the original orders. The court converted the final order into an interim order and granted liberty to both parties to apply to the court to vary the order, but only twelve months before the child was expected to commence grade one. Additionally, the court mandated that both parties must endeavour to attend alternative dispute resolution before commencing any proceedings. The court also granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

That the appeal against the orders of Jarrett FM made on 15 February 2008 be allowed.

That paragraph 4 of the orders made on 15 February 2008 be discharged.

That paragraph 3 of the orders made on 15 February 2008 be varied by inserting at the commencement of the order the words “Until further order of the Court,”.

That each party have liberty to apply to the Court at first instance to vary order 3 of the orders made on 15 February 2008, as amended by these orders, with such liberty not to be exercised until 12 months prior to the date on which the child [P], born [in] November 2005, is expected to commence Grade 1.

That as a pre‑condition to either party seeking to exercise the liberty provided for in the previous order, that party shall use their best endeavours to ensure that the other party attends with them on a family dispute resolution practitioner or attend a Family Relationship Centre or some other alternative dispute resolution provider to assist with reaching agreement about any proposed change to order 3 of the orders made on 15 February 2008.

That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 the appellant in relation to the appeal against the orders made on 15 February 2008.

That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal against the orders made on 15 February 2008.

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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