Dicosta & Dicosta - [2008] FamCAFC 161

FAMILY COURT OF AUSTRALIA

DICOSTA & DICOSTA

[2008] FamCAFC 161

FAMILY LAW - APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – with whom a child lives and spends time with – where Federal Magistrate’s orders provided for the children to live with the father five nights a fortnight – where father sought that children spend equal time with him – whether the Federal Magistrate erred in placing reliance on the “status quo” in light of the intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – whether the Federal Magistrate erred in his application of the provisions of the Family Law Act 1975 (Cth), in particular s 65DAA – consideration of the fact that the trial judgment was delivered ex tempore – emphasised that parenting decisions are to be determined on their own facts having regard to the findings required by the legislation – no substance found in the appeal.

FAMILY LAW - APPEAL – COSTS – no order for costs.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 61DB, 65DAA

Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Goode v Goode (2006) FLC 93-286

APPELLANT:

Mr Dicosta

RESPONDENT:

Ms Dicosta

FILE NUMBER:

CAC

343

2007

APPEAL NUMBER:

104

2007

DATE DELIVERED:

29 October 2008

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn, Coleman and Thackray JJ

HEARING DATE:

18 March 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

16 August 2007

LOWER COURT MNC:

[2007] FMCAfam 714

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Tonkin

SOLICITOR FOR THE APPELLANT:

Phelps Reid Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Brzostowski SC

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

That the appeal be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Dicosta & Dicosta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 104 of 2007
File Number: CAC 343 of 2007

Mr Dicosta

Appellant

And

Ms Dicosta

Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an appeal by the father of two children, now aged about seven and five, against orders made by Brewster FM on 4 September 2007 which provided that the children should live with the father from after school on Friday to the commencement of school on Monday on each alternate weekend and from after school on Wednesday to the commencement of school on Thursday in each week (that is, for five nights in fourteen) and for the balance of the time with their mother.
Prior to the separation of the parents in January 2007, the father had worked full-time in his own business. The mother had not engaged in outside employment and thus had been able to be the full-time carer for the children.
Following the parents’ separation,…

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 Dicosta & Dicosta

Details

AGLC: Dicosta & Dicosta [2008] FamCAFC 161
Case: [2008] FamCAFC 161
Decision Date: 29 October 2008

CaseChat Overview and Summary

The appeal in Dicosta & Dicosta was heard by the Family Court of Australia. The primary dispute involved the allocation of parenting time between the parents of two children. The father contested the Federal Magistrate's decision that the children should reside with him for five nights every fortnight, seeking instead that the children spend equal time with both parents. The father argued that the Federal Magistrate had erred in relying on the "status quo" and had misapplied the provisions of the Family Law Act 1975, particularly section 65DAA.

The court was required to determine whether the Federal Magistrate had erred in his application of the Family Law Amendment (Shared Parental Responsibility) Act 2006, specifically in maintaining the children's living arrangement that favoured the status quo. It was also necessary to assess whether the trial judgment, delivered ex tempore, correctly applied the relevant legislative provisions. The court emphasised that parenting decisions must be based on the unique facts of each case, considering the findings mandated by the legislation.

The court found that the Federal Magistrate's decision was consistent with the statutory requirements and the evidence presented. The appeal was dismissed as no error was found in the magistrate's application of the law or in his consideration of the children's best interests. Consequently, the court ruled that there should be no order for costs in relation to the appeal.

The final orders of the court were that the appeal be dismissed and that there be no order for costs. This decision underscores the importance of individualised assessments in parenting disputes, highlighting the need for courts to apply statutory provisions correctly and to avoid undue reliance on previous arrangements without proper justification.

Orders

Orders of the court

That the appeal be dismissed.

That there be no order for costs.

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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