Green & Graham

Case [2011] FamCAFC 248

FAMILY COURT OF AUSTRALIA

GREEN & GRAHAM [2011] FamCAFC 248

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against interlocutory orders of a Federal Magistrate ─ Parenting arrangements ─ Where the issue was whether or not the learned Federal Magistrate erred in declining to order supervision by a contact centre on an interim basis in relation to the time the child would spend with the father ─ Where the finding by his Honour that no significant submission was put as to why supervision would be required was inaccurate ─ Where the crux of the challenges was that his Honour failed to give adequate weight to the need to provide reassurance to the mother for the safety of the child, and/or that his Honour failed to give adequate weight to the history of non-contact between the child and her father relative to her young age, the duration of separation and the absence of any evidence of an existing relationship ─ Established that his Honour failed to give adequate weight to the series of findings he had made with respect to the father’s capacity in the way that his Honour had recorded those findings, to the absence of evidence that the child had any relationship with the father at that time, and the father and child having spent no time with each other whenever the separation of the parents occurred ─ Where the failure to give adequate weight to the child’s circumstances had led his Honour into appealable error, in that if his Honour had given proper weight to the child’s circumstances he would have provided supervision at least on an interlocutory basis ─ Appeal allowed ─ Proceedings remitted to the Federal Magistrates Court

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal succeeded on a basis which enlivened the discretion to award costs certificates under the Federal Proceedings (Costs) Act 1981(Cth) ─ Where the Court awarded costs certificates to both parties for the appeal, and costs certificates for the re-hearing of the proceedings in the Federal Magistrates Court
Family Law Act 1975 (Cth) ss 60CC, 93A
Federal Proceedings (Costs) Act 1981(Cth) ss 6, 8, 9
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
APPELLANT: Ms Green
RESPONDENT: Mr Graham
FILE NUMBER: PAC 3862 of 2011
APPEAL NUMBER: EAA 130 of 2011
DATE DELIVERED: 22 December 2011
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Coleman J
HEARING DATE: 20 December 2011
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 8 November 2011
LOWER COURT MNC: [2011] FMCAfam 1313

REPRESENTATION

COUNSEL FOR THE APPELLANT: N/A
SOLICITOR FOR THE APPELLANT: Marsdens Law Group
COUNSEL FOR THE RESPONDENT: N/A
SOLICITOR FOR THE RESPONDENT: Lachlan McAuley

Orders

  1. That the appeal be allowed.

  2. That the proceedings be remitted to the Federal Magistrates Court for re-determination.

  3. That, pending re-determination of the proceedings by the Federal Magistrates Court, order 3 of the orders of the Federal Magistrates Court of 8…

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Green & Graham [2011] FamCAFC 248
Case
[2011] FamCAFC 248
Decision Date

CaseChat Overview and Summary

This appeal concerns an interlocutory order made by a Federal Magistrate concerning the parenting arrangements of a young child. The mother appealed the decision of the Federal Magistrate to the Family Court of Australia. The mother sought to have the child spend supervised time with her father, while the Federal Magistrate declined to order supervision on an interim basis. The mother argued that the Federal Magistrate did not give sufficient weight to the mother's need for reassurance, the history of non-contact between the child and her father, and the absence of any evidence of an existing relationship.

The court found that the Federal Magistrate had erred in finding that no significant submission was put as to why supervision would be required. The court held that the mother had made several challenges, including that the Federal Magistrate failed to give adequate weight to the need for reassurance, the history of non-contact, and the absence of any evidence of an existing relationship. The court found that the Federal Magistrate failed to give adequate weight to the child's circumstances, leading to appealable error. The court held that if the Federal Magistrate had given proper weight to the child's circumstances, he would have provided supervision at least on an interlocutory basis.

The appeal was allowed and the proceedings were remitted to the Federal Magistrates Court for re-determination. The court also made orders pending the re-determination of the proceedings by the Federal Magistrates Court, including that the child's time with her father be supervised. The court also granted costs certificates to both parties for the appeal and for the re-hearing of the proceedings in the Federal Magistrates Court.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the proceedings be remitted to the Federal Magistrates Court for re-determination.

3.

That, pending re-determination of the proceedings by the Federal Magistrates Court, order 3 of the orders of the Federal Magistrates Court of 8 November 2011 be varied by the addition of the words “such time to be supervised” after the word “Saturday”.

4.

That, pending re-determination of the proceedings by the Federal Magistrates Court, order 5 of the said orders be varied by the addition of the words “and supervision of time spent with the child” after the word “changeovers”.

5.

That, if the parties agree, time spent may be supervised by the paternal grandmother, provided that, prior to any period of such supervision, the paternal grandmother file a written undertaking with the Registrar of the Federal Magistrates Court confirming that she will terminate any period of supervised time spent by the father with the child in the event of the child becoming distressed, or the father acting in any way which the paternal grandmother considers inconsistent with the child’s best interests.

6.

That the Court grants to the Appellant Mother 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 Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.

7.

That the Court grants to the Respondent Father 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 Father in respect of the costs incurred by the Respondent Father in relation to the appeal.

8.

That the Court grants to each party a costs certificate pursuant to the provisions of s.8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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