FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the subject child is the biological child of the parties – Where the mother appeals from interim orders relating to the subject child, following her unilateral relocation interstate with the subject child and her older child from a previous relationship – Where the primary judge ordered the mother and children to return and live in the region from which they moved to enable the subject child to spend unsupervised time with the father for five hours each Saturday – Where the primary judge made incidental orders stipulating the changeover location and requiring the mother to inform the Court and the Independent Children’s Lawyer of the children’s new residence once established in the original region – Where the appeal was resisted by the father, but not ultimately by the Independent Children’s Lawyer – Where there are identifiable legal errors which were not the subject of any discrete ground of appeal but affect consideration of the grounds more generally – Where the primary judge failed to consider two filed affidavits expressly relied on by the mother – Where the primary judge gave no consideration, or alternatively insufficient weight, to aspects of the evidence – Where the principles in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 are considered – Where there was no reason for the primary judge to deny the mother her freedom of choice about her place of residence – Where inadequate reasons were given by the primary judge for ordering the mother to relocate her residence with the children back to the original region – Where the mother’s assertion that insufficient reasons were given by the primary judge for the finding made about “unacceptable risk” is rejected – Where the primary judge failed to properly consider, by wrongly discounting the weight of, the mother’s evidence adduced in support of the contention of “unacceptable risk” of harm to the subject child – Where it was open for the primary judge to accept opinion evidence from the Family Consultant at the interim hearing even though it remained untested by cross-examination – Where the appeal succeeds due to material errors of law – Appeal allowed – Appealed orders set aside and remitted to the Federal Circuit Court of Australia for re-hearing.
FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on errors of law – Where no order for costs was sought – Where the parties sought costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) – Where costs certificates were granted to the parties – Where the Independent Children’s Lawyer is ineligible to receive costs certificates.
[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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AGLC
Franklyn & Franklyn [2019] FamCAFC 256
Case
[2019] FamCAFC 256
Decision Date
CaseChat Overview and Summary
The appeal in this case concerns interim parenting orders involving a biological child of the parties, following the mother's relocation with the child and her older child from a previous relationship. The mother had moved from one region to another without the father's consent, prompting an application for interim parenting orders from the father. The primary judge, in the Federal Circuit Court, made orders that required the mother and children to return to the original region to facilitate unsupervised time with the father and also stipulated the changeover location and required the mother to inform the Court and the Independent Children’s Lawyer of the children's new residence. The mother appealed from these orders, arguing that they were based on legal errors and inadequate reasons. The father resisted the appeal, while the Independent Children’s Lawyer did not.
The court was tasked with determining whether the primary judge made material errors of law in arriving at the interim parenting orders, particularly whether the judge appropriately considered all relevant evidence and applied the correct legal principles. Key issues included whether the primary judge properly considered the mother's filed affidavits and the evidence related to the risk of harm to the child. The court also had to assess whether the primary judge gave adequate reasons for the orders made and whether the decision to require relocation was justified.
The appeal succeeded because the primary judge made material errors of law. The court found that the judge failed to consider relevant filed affidavits and did not give sufficient weight to aspects of the evidence, particularly concerning the risk of harm to the child. The court held that the primary judge did not provide adequate reasons for the relocation order and wrongly discounted the mother's evidence. Additionally, the court accepted that it was open to the primary judge to rely on the Family Consultant's opinion, despite it not being tested by cross-examination. Consequently, the appeal was allowed, the impugned orders were set aside, and the matter was remitted to the Federal Circuit Court for re-hearing. The parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), but the Independent Children’s Lawyer was ineligible to receive such a certificate.
Orders
Orders of the court
1.
The appeal is allowed.
2.
Orders 1, 4, 5, 6 and 7 made on 5 September 2019 are set aside.
3.
Subject to the continuing operation of Orders 2, 3 and 9 made on 5 September 2019, the parties’ applications for interim orders under Part VII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit Court of Australia at Parramatta for re-hearing.
4.
The appellant is granted 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.
5.
The respondent is granted a costs certificate pursuant to the provisions of
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 in respect of the costs incurred by him in relation to the appeal.
6.
The appellant and the respondent are granted costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant and the respondent in respect of the costs incurred by them in relation to the re-hearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.