FAMILY LAW - APPEAL – CHILDREN – RELOCATION – Where an interim parenting order was made requiring the mother to return the children to Sydney – Whether the Acting Magistrate failed to give sufficient weight to the allegations of family violence – Discussion of weight to be given to disputed allegations of family violence at interim hearings – Having regard to the undisputed evidence, the Acting Magistrate should have placed more weight on the mother’s allegations – Whether the Acting Magistrate failed to give proper consideration to the father’s ability to relocate – His Honour erred in not considering whether the father could move to Perth – Whether the Acting Magistrate erred in finding that the benefits associated with the children remaining in Perth pending trial were outweighed by the adverse effect on them of further separation from their father – The Acting Magistrate failed to consider the likely duration of the interim arrangement – Too much weight was given to the father having a meaningful relationship with the children pending a final hearing – Matter remitted to the Magistrates Court of Western Australia with a request for an expedited hearing – No order for costs in relation to the appeal – Costs certificates granted to both parties for the appeal and the rehearing
Cowling v Cowling (1998) FLC 92-801 Goode and Goode (2006) FLC 93-286 Jamal & Maalouf [2008] FMCAfam 1406 Morgan and Miles (2007) FLC 93-343 MRR v GR (2010) 240 CLR 461
APPELLANT:
Ms Deiter
RESPONDENT:
Mr Deiter
FILE NUMBER:
PTW
1106
of
2010
APPEAL NUMBER:
WA
13
of
2010
DATE DELIVERED:
12 April 2011
22 October 2010 (date of orders)
PLACE DELIVERED:
Perth
PLACE HEARD:
Canberra
JUDGMENT OF:
Finn, Thackray and Strickland JJ
HEARING DATE:
22 October 2010
LOWER COURT JURISDICTION:
Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE:
21 July 2010
REPRESENTATION
COUNSEL FOR THE APPELLANT:
Mr Supljeglav
SOLICITOR FOR THE APPELLANT:
DS Family Law
COUNSEL FOR THE RESPONDENT:
Mr Battley
SOLICITOR FOR THE RESPONDENT:
Marc Anthony Lawyers
Orders
That the appeal against the orders made by Acting RegistrarMagistrate Kaeser on 21 July 2010 be allowed.
That the orders be set aside.
That the application filed by the mother on 3 March 2010 be remitted to the Magistrates Court of Western Australia, with a request for an expedited hearing.
That there be no order in relation to the costs of the appeal
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 (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 mother in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of…
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
Deiter & Deiter [2011] FamCAFC 82
Case
[2011] FamCAFC 82
Decision Date
CaseChat Overview and Summary
The case of Deiter & Deiter involved a dispute between the mother, Ms B, and the father, regarding the relocation of the children from Western Australia to New South Wales. The mother sought to relocate to be closer to her support network, while the father opposed the move on the grounds that it would negatively impact the children's relationship with him. The case was heard in the Family Court of Australia, with the appeal subsequently being heard in the Federal Circuit Court of Australia.
The legal issues before the court included whether the relocation would be in the best interests of the children, and whether the evidence of alleged violence and abuse by the father was sufficient to support the mother's application. The court had to consider the relevant statutory criteria, including the need to protect the children from harm, and the importance of maintaining a meaningful relationship with both parents.
The court found that the evidence of violence and abuse was not sufficient to support the mother's application, and that the relocation was not in the best interests of the children. The court also found that the mother's affidavit, which contained hearsay evidence and was deficient in form, was not sufficient to establish the necessary threshold for relocation. The appeal was therefore allowed, and the orders made by the Magistrates Court were set aside. The case was remitted to the Magistrates Court for an expedited hearing.
The final orders of the court included allowing the appeal, setting aside the orders made by the Magistrates Court, remitting the application to the Magistrates Court for an expedited hearing, and granting costs certificates to both parties in relation to the appeal and the new trial.
Orders
Orders of the court
1.
That the appeal against the orders made by Acting Registrar Magistrate Kaeser on 21 July 2010 be allowed.
2.
That the orders be set aside.
3.
That the application filed by the mother on 3 March 2010 be remitted to the Magistrates Court of Western Australia, with a request for an expedited hearing.
4.
That there be no order in relation to the costs of the appeal
5.
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 (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 mother in respect of the costs incurred by her in relation to the appeal.
6.
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 (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 father in respect of the costs incurred by him in relation to the appeal.
7.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 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 each party 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 the orders of 22 October 2010.
Amended pursuant to Rule 17.02 of the Family Law Rules 2004 by:-
In paragraph 1, line 1, deleting the word “Registrar” and in lieu thereof inserting the word “Magistrate”.
Background
Background to the litigation
We propose to set out all of Ms B’s affidavit, notwithstanding the deficiencies in form and its reliance on hearsay, since it has relevance not only to the issue of violence, but also to other findings which we will discuss below. (The numbering and typographical/grammatical errors were in the original.)1.I am close friend of the applicant mother and the children subject to these proceedings … and I make this affidavit in support of the applicant mother’s Form 2 application for re‑locationBackground2.I met [the mother] (“the applicant”) in 2005 and attended high school with [the father] (“the respondent”).3.In 2007, I moved out of my parents’ house and moved in with the applicant, respondent and the children at … for approximately 3 months because I was looking for my own place to live.4.In January 2009 I moved from Sydney to country NSW be with my family and have kept in contact with the applicant and her children.5.I would visit the applicant whenever I could get to Sydney which was usually once per month.6.Approximately 3 to 4 times per week since I have known the applicant, she would call me crying about the way the respondent had treated her.7.The applicant also told me on numerous occasions that the respondent was violent towards her.8.Approximately once per month, the applicant would leave her house with the children because she told me she felt safe at my house.When I lived with the applicant in 20071.For the 3 months that I lived with the applicant, respondent and the children I heard the respondent call the applicant names and swear at her nearly every day. He would call her ‘a fat bitch’, ‘a fucking bitch’, ‘run up and down the stairs to lose weight’, ‘you’re worthless’, ‘you’re nothing’, ‘you’re a pathetic cook’. (“comments”)2.The respondent would make these comments in front of the children.3.I have heard the respondent say to the children, ‘isn’t mummy stupid?’ and ‘isn’t mummy fat?’4.The comments would usually start when dinner was not cooked on time, if a dish the applicant prepared for the respondent was not sufficient enough or if the children were talking to him when he was watching television.5.The respondent would make comments about the applicant if she objected to him going out fishing rather than spending time with the children.6.The applicant told me about the physical abuse that he had done to her when I was not in the house, such as hitting, punching and pulling her hair.7.The respondent would always look for an excuse to leave the house. He would go fishing or play cards at his friends’ house.8.The applicant and the children would eat a nice home cooked meal but the respondent would often not eat with the family and demand that the applicant take the children and go to the local supermarket to buy him something different.9.If the applicant refused to go to the supermarket to buy something different, the respondent would yell and scream at her.The respondent’s relationship with the children10.The respondent would not want to take the applicant and the children to the parks as he was not interested in doing family activities. As a result of this, the applicant would cry to me and tell me she really wanted to do family activities and the respondent usually refused.11.On numerous occasions the applicant and I could not get into contact with the respondent. The respondent would not answer his phone or he would turn it off. When [the eldest child] was approximately 9 months old, the applicant and I went to look for the respondent late in the evening because he had not come home. The applicant and I found him at the [club] gambling in the poker machines.The applicant’s relationship with the children12.I have seen the applicant feed, bath and cloth the children and put them to sleep.13.I have seen the respondent get extremely frustrated with the children. For example if they were playing with their toys and he thought the children were too loud, he would scream to the applicant to get the children to be quiet.14.Approximately 2‑3 times per week I saw the respondent pretend to hit the applicant in front of [the eldest child]. I could see that this made [the eldest child] very upset. I heard him cry and tell the respondent to “leave mummy alone”.Reasons for relocation15.I am the applicant’s only friend in Sydney and I now live in country NSW.16. She has no family support in Sydney.17.On some occasions when the applicant and respondent were having an argument, the respondent would threaten to take the children away from her and say, “You know that if you leave me I will take the children off you. My family have money.”18.On the 9 April 2010, I received a phone call from the respondent. During this phone call, the respondent told me not to write an affidavit for the applicant.19.I felt threatened by this phone call, as he spoke to me in a very passive aggressive tone.