Edelman and Ziu (No 2) - [2010] FamCAFC 236

FAMILY COURT OF AUSTRALIA

EDELMAN & ZIU (NO. 2)

[2010] FamCAFC 236

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate failed to follow the legislative pathway under s 65DAA – Whether the Federal Magistrate failed to provide adequate reasons – Where ‘best interests’ and ‘reasonable practicability’ were considered for both equal shared time and substantial and significant time – Reasons adequate – No appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate erred in failing to make adverse credit findings about the mother – No appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate erred in failing give proper weight to the matters set out in s 60CC(3)(d), (g) and (i) – Discretionary judgment – Where weight afforded to the child’s relationship with his half-brother, his mother’s Chinese heritage and the father’s parenting capacity were all open to the Federal Magistrate – No appealable error established.

FAMILY LAW - APPEAL – COSTS – Where father wholly unsuccessful – The father to pay the mother’s cost of and incidental to the appeal – The father to pay the Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3)(d),(g) and (i), 61DA, 65DAA

AMS & AIF (1999) 199 CLR 160
Bennett & Bennett (1991) FLC 92-191
Gronow & Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
In the Marriage of Goudge (1984) 9 Fam LR 500
In the Marriage of Hall (1979) 5 Fam LR 609
MRR & GR (2010) 240 CLR 461
Pettitt v Dunkley [1971] 1 NSWLR 376
Rollings v Rollings (2009) 230 FLR 396
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Mr Edelman

RESPONDENT:

Ms Ziu

INDEPENDENT CHILDREN’S LAWYER:

Christine Lovell-Jones

FILE NUMBER:

LEC

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

24 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Boland, O’Ryan & Le Poer Trench JJ

HEARING DATE:

4 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1227

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Laws

SOLICITOR FOR THE APPELLANT:

McCarthy Durie Ryan Neil

COUNSEL FOR THE RESPONDENT:

Ms Smith

SOLICITOR FOR THE RESPONDENT:

GJ Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gallloway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

The appeal is dismissed.
The father pay the mother costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004 (Cth).
The father pay the Independent Children’s Lawyer’s costs in the sum of $3,492.50.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA…

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 Edelman and Ziu (No 2)

Details

AGLC: Edelman and Ziu (No 2) [2010] FamCAFC 236
Case: [2010] FamCAFC 236
Decision Date: 24 November 2010

CaseChat Overview and Summary

In the case of Edelman and Ziu, the appeal arose from decisions regarding parenting orders concerning the parties' children. The Federal Circuit and Family Court of Australia was tasked with considering whether the Federal Magistrate erred in their handling of the parenting orders. The appeal encompassed several issues, including whether the Federal Magistrate failed to follow the legislative pathway under section 65DAA, whether adequate reasons were provided, and whether the magistrate properly considered the matters outlined in section 60CC(3)(d), (g), and (i) of the Family Law Act. Additionally, the appeal addressed whether the Federal Magistrate should have made adverse credit findings about the mother and if the court gave appropriate weight to specific factors, including the child's relationship with his half-brother, the mother's Chinese heritage, and the father's parenting capacity.

The court meticulously examined the Federal Magistrate's approach to determining the children's best interests and the reasonable practicability of various parenting arrangements. It was found that the magistrate adequately considered the relevant legislative provisions and provided sufficient reasons for their decisions. The court concluded that the Federal Magistrate's assessment of the child's relationship with his half-brother, the mother's cultural background, and the father's parenting capabilities was within their discretionary judgment, and no appealable error was established. The court further held that there was no error in the magistrate's failure to make adverse credit findings about the mother and in the weight given to specific factors.

Ultimately, the appeal was dismissed, and orders were made for the father to pay the mother's costs of and incidental to the appeal, as well as the Independent Children's Lawyer's costs. This decision underscores the importance of thorough consideration and adequate reasoning in family law matters, particularly concerning parenting orders. The Federal Circuit and Family Court of Australia's ruling reinforces the principle that, in the absence of clear error, the discretion of the primary judge should be upheld.

Orders

Orders of the court

The appeal is dismissed.

The father pay the mother costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004 (Cth).

The father pay the Independent Children’s Lawyer’s costs in the sum of $3,492.50.

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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