FORBES & BARLOW - [2011] FamCAFC 76

FAMILY COURT OF AUSTRALIA

FORBES & BARLOW

[2011] FamCAFC 76

FAMILY LAW - APPEAL – CHILDREN – relocation – adequacy of reasons – whether the Federal Magistrate failed to provide adequate reasons for an order that the child spend specified time with the father on a weekday – where the mother and father lived some distance apart – whether the Federal Magistrate failed to provide adequate reasons for an order requiring the mother to relocate to within 20 kilometres of the father’s residence upon the child turning three – whether the Federal Magistrate failed to consider whether the orders were reasonably practicable – merit found in cross appeal – cross appeal allowed – orders appealed against set aside – matter remitted for re-hearing.

FAMILY LAW - APPEAL – COSTS OF APPEAL – costs certificates – where the cross appeal was allowed on a question of law – costs certificates awarded to both parties pursuant to the Federal Proceedings Costs Act 1981 (Cth) in respect of the cross appeal and the re-hearing.

Family Law Act 1975 (Cth) s 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 & 9

Bennett and Bennett (1991) FLC 92-191
MRR v GR (2010) 240 CLR 461

CROSS APPELLANT:

Ms Forbes

RESPONDENT:

Mr Barlow

FILE NUMBER:

BRC

11228

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

7 April 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland and Ainslie-Wallace JJ

HEARING DATE:

28 September 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 July 2009 (date of orders)
5 February 2010 (date reasons delivered)

LOWER COURT MNC:

[2009] FMCAfam 1455

REPRESENTATION

COUNSEL FOR THE CROSS APPELLANT:

Mr Baston

SOLICITOR FOR THE CROSS APPELLANT:

John McDonald Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Brasch

SOLICITOR FOR THE RESPONDENT:

Evans & Co Family Lawyers

Orders

The cross appeal be allowed.
Orders 4 and 5 made by Federal Magistrate Wilson on 31 July 2009 be set aside.
The proceedings be remitted for hearing before a Federal Magistrate of the Federal Magistrates Court at Brisbane, with a request for an expedited hearing.
There be no order for costs.
The Court grants to the cross appellant mother a costs certificate pursuant to 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 cross appellant mother in respect of the costs incurred by her in relation to the cross appeal.
The Court grants to the respondent father a costs certificate pursuant to 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 cross appeal.
The Court grants to each party a costs certificate pursuant to s 8 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: FORBES & BARLOW [2011] FamCAFC 76
Case: [2011] FamCAFC 76
Decision Date: 7 April 2011

CaseChat Overview and Summary

The matter before the court was an appeal and cross-appeal concerning the relocation of a child between the mother and father, with the child's welfare at the heart of the dispute. The appeal was initiated by the father, contesting the orders made by the Federal Magistrate regarding the child's time to be spent with him and the mother's requirement to relocate. In response, the mother filed a cross-appeal, challenging the same orders and additionally arguing that the Federal Magistrate failed to consider the practicality of the orders. The case was heard in the Federal Circuit Court of Australia.

The court was required to decide whether the Federal Magistrate had provided sufficient reasons for the orders regarding the child's time with the father and the mother's relocation. Furthermore, it needed to determine whether the Magistrate had considered the practicality of these orders. The court also had to consider the merit in the mother's cross-appeal and the appropriate allocation of costs.

The court found merit in the mother's cross-appeal, ruling that the Federal Magistrate had not adequately explained the reasons for the orders concerning the child's time with the father and the requirement for the mother to relocate. Additionally, the court held that the Magistrate failed to consider whether the orders were reasonably practicable. Consequently, the cross-appeal was allowed, and the orders appealed against were set aside. The matter was remitted for re-hearing before a Federal Magistrate of the Federal Magistrates Court at Brisbane, with a request for an expedited hearing. The court also awarded costs certificates to both parties in relation to the cross-appeal and the re-hearing, as the cross-appeal was allowed on a question of law.

The final orders included allowing the cross-appeal, setting aside the contested orders, remitting the matter for re-hearing, and granting costs certificates to both parties. The court did not order costs for the appeal itself.

Orders

Orders of the court

The cross appeal be allowed.

Orders 4 and 5 made by Federal Magistrate Wilson on 31 July 2009 be set aside.

The proceedings be remitted for hearing before a Federal Magistrate of the Federal Magistrates Court at Brisbane, with a request for an expedited hearing.

There be no order for costs.

The Court grants to the cross appellant mother a costs certificate pursuant to 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 cross appellant mother in respect of the costs incurred by her in relation to the cross appeal.

The Court grants to the respondent father a costs certificate pursuant to 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 cross appeal.

The Court grants to each party a costs certificate pursuant to 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 re-hearing of the application.

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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