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French & Fetala

French & Fetala

Case [2014] FamCAFC 57

Appeal

Jurisdiction

Reasons for Judgment

Parental Responsibility

Best Interests of the Child

Procedural Fairness

Admissibility of Evidence

Family Law

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FAMILY COURT OF AUSTRALIA

FRENCH & FETALA

[2014] FamCAFC 57

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother challenges orders made by the Magistrate which were not sought by either party or the Independent Children’s Lawyer – where it is not incumbent upon a trial judge to accept either party’s proposals – where, however, reasons for making orders not sought by either party must be given – whether the Magistrate gave sufficient reasons for making orders that were not sought by either party or the Independent Children’s Lawyer – where the Magistrate did not give sufficient reasons – error demonstrated – appeal allowed.

FAMILY LAW – APPEAL – CHILDREN – where the Magistrate determined that the presumption in s 61DA of the Family Law Act 1975 (Cth) did not apply by virtue of “family violence” – where the Magistrate nonetheless determined that an order for equal shared parental responsibility was in the child’s best interests – where the Magistrate subsequently held that he was not obliged to consider s 65DAA – whether the Magistrate erred in holding that, despite making an order for equal shared parental responsibility, he was not bound to consider s 65DAA – error demonstrated – appeal allowed – no order as to costs – costs certificates granted.

Family Law Act 1975 (Cth) s 60CC, s 61DA, s 65D, s 65DAA, s 65DAB
Federal Proceedings (Costs) Act 1981 (Cth), s 8, s 9

Family Law Rules 2004 (Cth) r 22.39(1)

AIS v AIF (1999) 199 CLR 160
Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd (Receivers & Managers Appointed) (2011) 244 CLR 1
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Kuru v New South Wales (2008) 236 CLR 1
MRR v GR (2010) 240 CLR 461
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238
Warren v Coombes (1979) 142 CLR 531
Yates & Yates [2012] FamCAFC 138

APPELLANT:

Ms French

RESPONDENT:

Mr Fetala

FILE NUMBER:

PTW

2007

2009

APPEAL NUMBER:

2013

DATE DELIVERED:

4 April 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray, Strickland and Murphy JJ

HEARING DATE:

31 March 2014

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

13 September 2013

LOWER COURT MNC:

[2013] FCWAM 98

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The application in an appeal filed on 20 March 2014 seeking the introduction of further evidence be dismissed.
The appeal be allowed.
Order 5 of the orders made by Kaeser A/M on 13 September 2013 be set aside, save for its continued operation as an interlocutory order pending further order of the Magistrates Court of Western Australia or the Family Court of Western Australia.
Orders 7, 8, 9, 10, 11, 12, 13, 15, 16 and 17 of the orders made by Kaeser…

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 French & Fetala

Details

AGLC: French & Fetala [2014] FamCAFC 57
Case: [2014] FamCAFC 57
Decision Date

CaseChat Overview and Summary

In this case, the mother, Ms French, appealed against orders made by a Magistrate which were not sought by either party or the Independent Children's Lawyer. The legal issues in the appeal related to whether the Magistrate gave sufficient reasons for making orders that were not sought by either party or the Independent Children's Lawyer, whether the Magistrate erred in holding that he was not obliged to consider s 65DAA, and whether the Magistrate erred in making an order for equal shared parental responsibility.

The Court found that the Magistrate did not give sufficient reasons for making orders that were not sought by either party or the Independent Children's Lawyer, and that the Magistrate erred in holding that he was not obliged to consider s 65DAA. The Court also found that the Magistrate's order for equal shared parental responsibility was not supported by adequate reasons, and that the Magistrate had failed to adequately consider the evidence of the single expert.

The Court set aside the orders made by the Magistrate and remitted the matter to the Magistrates Court of Western Australia for rehearing before a different Magistrate. The Court also granted certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to the mother and the father to cover the costs they would incur in relation to the rehearing. The Court dismissed the mother's application to adduce further evidence in the appeal.

Orders