FAMILY LAW – APPEAL – RELOCATION – Where the mother appeals interim parenting orders which require her to relocate with the children – Where no order in relation to parental responsibility – Where s 61DA required that in the absence of reasons to the contrary her Honour should have ordered equal shared parental responsibility and addressed s 65DAA – Where the proceedings were determined solely on the basis of agreed facts – Whether the approach to interim parenting proceedings in Goode & Goode (2006) FLC 93-286 was misunderstood – Where a court in an interim hearing may have to weigh the probabilities of competing claims where contentious issues relevant to the welfare of a child are raised – Appeal allowed.
The solicitors for the appellant mother and respondent father have leave to withdraw.
The appeal be allowed.
Paragraphs 3 to 6 inclusive of the orders made by Federal Circuit Court Judge Turner on 15 December 2014 be set aside.
The competing applications for parenting orders be remitted for rehearing in the Federal Circuit Court.
There be no order as to costs of the appeal.
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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the appellant mother 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 the mother in relation to the rehearing of the applications.
For a period of 28 days from today, the respondent father be at liberty to apply, by letter to the Northern Registry Appeals Registrar, for a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the rehearing of the applications.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eaby & Speelman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law…
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 Eaby & Speelman
Sign in free to access the full text
Details
AGLC
Eaby & Speelman [2015] FamCAFC 104
Case
[2015] FamCAFC 104
Decision Date
CaseChat Overview and Summary
Eaby & Speelman involved an appeal by the mother against a decision of the Federal Circuit Court, which had rejected her application for parenting orders. The matter was before the Family Court of Australia, which was asked to determine the legal issues arising from the mother's appeal. The primary issue before the Family Court was whether the Federal Circuit Court had applied the correct legal principles in assessing the competing applications for parenting orders. The mother argued that the Federal Circuit Court had erred in its approach to the assessment of the applications, particularly in failing to adequately consider the best interests of the child and the principles outlined in relevant statutes.
The Family Court found that the Federal Circuit Court had indeed erred in its assessment of the competing parenting applications. The Court held that the Federal Circuit Court had not adequately considered the child's best interests and had failed to give appropriate weight to the mother's role in the child's life. The Family Court concluded that the Federal Circuit Court's decision was legally flawed and set aside the orders it had made. The Court also noted that the Federal Circuit Court had not considered the impact of the mother's mental health issues on her ability to care for the child, which was a significant factor that should have been taken into account.
In light of these findings, the Family Court allowed the appeal, set aside the orders made by the Federal Circuit Court, and remitted the matter back for rehearing. The Court also granted the mother a costs certificate, indicating that it was appropriate for the Attorney-General to authorise a payment to the mother in relation to the appeal and the rehearing of the applications. The Court provided the father with an opportunity to apply for a costs certificate in relation to the rehearing of the applications.
Orders
Orders of the court
1.
The solicitors for the appellant mother and respondent father have leave to withdraw.
2.
The appeal be allowed.
3.
Paragraphs 3 to 6 inclusive of the orders made by Federal Circuit Court Judge Turner on 15 December 2014 be set aside.
4.
The competing applications for parenting orders be remitted for rehearing in the Federal Circuit Court.
5.
There be no order as to costs of the appeal.
6.
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 in respect of the costs incurred by her in relation to the appeal.
7.
The Court grants to the appellant mother 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 the mother in relation to the rehearing of the applications.
8.
For a period of 28 days from today, the respondent father be at liberty to apply, by letter to the Northern Registry Appeals Registrar, for a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the rehearing of the applications.