FLETCHER & PRINCE - [2011] FamCAFC 170

FAMILY COURT OF AUSTRALIA

FLETCHER & PRINCE

[2011] FamCAFC 170

FAMILY LAW – APPEAL – Discretion – Challenge to the orders of a Federal Magistrate with respect to the time the child is to spend with the father whilst the father resides overseas – Not established that the learned Federal Magistrate erred in the exercise of his discretion.

FAMILY LAW – APPEAL – Challenge to the decision of a Federal Magistrate to refuse to make an order for the child to spend time with the paternal grandparents whilst the father resides overseas – Challenge to the adequacy of reasons provided for declining to make such an order – In circumstances where the mother had made concessions at trial with respect to facilitating time spent between the child and the paternal grandparents, and where the issue had assumed significance in submissions, the learned Federal Magistrate’s reasoning on this topic was inadequate – Established that the learned Federal Magistrate erred in concluding that there was no jurisdiction to make an order with respect to the child spending time with the paternal grandparents, who were not parties to the proceedings – Appeal allowed in relation to the learned Federal Magistrate’s refusal to make an order that the child spend time with the paternal grandparents – Where the mother asserts she has relevant further evidence on the issue – Issue remitted for determination by a Federal Magistrate other than the learned Federal Magistrate.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Mr Fletcher

RESPONDENT:

Ms Prince

FILE NUMBER:

SYC

5495

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

18 August 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

3 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 March 2011

LOWER COURT MNC:

[2010] FMCAfam 268

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Maclarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

John de Mestre & Co.

Orders

The appeal is allowed.
The paternal grandparents [Mr and Mrs I] are joined as parties to the proceedings.
The application of the father that the child [J] spend time with the paternal grandparents when he is residing outside the Commonwealth of Australia be remitted for hearing before a Federal Magistrate other than Federal Magistrate Scarlett.
The Court grants to the Appellant Father 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 Father in respect of the costs incurred by the Appellant Father in relation to the appeal.
The…

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: FLETCHER & PRINCE [2011] FamCAFC 170
Case: [2011] FamCAFC 170
Decision Date: 18 August 2011

CaseChat Overview and Summary

In the appeal of Fletcher & Prince, the parties involved were a father and a mother in a contentious family law dispute. The dispute centered around the time their child was to spend with the father while he resided overseas and whether the child should have time with the paternal grandparents. The case was heard in the Family Court of Australia.

The legal issues before the court were whether the Federal Magistrate had erred in exercising his discretion regarding the time the child would spend with the father and if the Magistrate had provided adequate reasons for declining to make an order for the child to spend time with the paternal grandparents. The court also needed to determine if the Magistrate had jurisdiction to make such an order regarding the paternal grandparents who were not parties to the proceedings.

The court found that while the Federal Magistrate had not erred in his discretion concerning the time the child was to spend with the father, the reasoning provided for refusing to make an order for the child to spend time with the paternal grandparents was inadequate. The Magistrate had not adequately addressed the issue despite the mother’s concessions at trial and the significance of the matter in the submissions. Furthermore, the court established that the Magistrate had erred in concluding that there was no jurisdiction to make an order for the child to spend time with the paternal grandparents. Consequently, the appeal was allowed regarding the Magistrate's refusal to make such an order. The case was remitted for hearing before a different Federal Magistrate.

The orders made by the court included allowing the appeal, joining the paternal grandparents as parties to the proceedings, remitting the father's application for the child to spend time with the paternal grandparents to a different Federal Magistrate, and granting costs certificates to both the father and the mother under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

The appeal is allowed.

The paternal grandparents [Mr and Mrs I] are joined as parties to the proceedings.

The application of the father that the child [J] spend time with the paternal grandparents when he is residing outside the Commonwealth of Australia be remitted for hearing before a Federal Magistrate other than Federal Magistrate Scarlett.

The Court grants to the Appellant Father 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 Father in respect of the costs incurred by the Appellant Father in relation to the appeal.

The Court grants to the Respondent Mother 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 Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.

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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