FAMILY COURT OF AUSTRALIA
| HAMISH & BRIGHTON | [2014] FamCAFC 242 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – RELOCATION – Where the primary challenge is to the spend time with orders and an order restraining the appellant from changing the place of residence of the children – Where the appeal is opposed – Where the trial judge failed to address s 65DAA of the Family Law Act 1975 (Cth) – Where it is not possible to infer from the trial judge’s findings that his Honour undertook the exercise required by s 65DAA(2) of the Family Law Act 1975 (Cth) – Where the trial judge made findings as to the best interests of the children but in the context of s 60CC and not in the context of s 65DAA(2)(c) of the Family Law Act 1975 (Cth) – Where the trial judge did not weigh up the relative proposals of each of the parties – Where there was no consideration by the trial judge under s 65DAA(2)(d) of the reasonable practicability of the proposals of the parties – Where given what the High Court said in MRR v GRR (2010) 240 CLR 461 it is doubtful whether the trial judge had the power to make the orders that he did – Where there is merit in the first four grounds of appeal – Appeal allowed – Parenting proceedings remitted to the Family Court of Western Australia for rehearing by a judge other than the trial judge. FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – Where the parties agree that each party should bear their own costs and that costs certificates should issue for the appeal and for the rehearing – no order for costs – costs certificates to issue. |
Family Law Act 1975 (Cth) – ss 60CC, 65DAA(2), (3), (4), (5) and Part VII
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9
Collu & Rinaldo [2010] FamCAFC 53
MRR v GR (2010) 240 CLR 461
Nada & Nettle [2014] FamCAFC 123
Orpheus & Orpheus [2014] FamCAFC 70
SCVG & KLD (2014) FLC 93-582
| APPELLANT: | Ms Hamish |
| RESPONDENT: | Mr Brighton |
| FILE NUMBER: | PTW | 1646 | of | 2013 |
| APPEAL NUMBER: | WA | 8 | of | 2014 |
| DATE DELIVERED: | 17 December 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, May & Strickland JJ |
| HEARING DATE: | 29 October 2014 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 4 March 2014 |
| DATE OF LOWER COURT ORDERS: LOWER COURT MNC: | 24 January 2014 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Jones |
| SOLICITOR FOR THE RESPONDENT: | Paterson & Dowding |
Orders
The appeal be allowed.
Paragraphs 4, 5, 6, 7 and 16 of order 1 and order 2 made by Moncrieff J on
24 January 2014 be set aside, with this order to take effect upon the commencement of the rehearing of the proceedings.
The parenting proceedings be remitted to the Family Court of Western Australia…
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- AGLC
- Hamish & Brighton [2014] FamCAFC 242
- Case
- [2014] FamCAFC 242
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial judge had correctly applied the relevant statutory provisions, specifically section 65DAA(2) of the Family Law Act 1975 (Cth). This included whether the trial judge had properly weighed the best interests of the children in the context of the statutory provisions and whether there was consideration of the reasonable practicability of the parties' proposals. The court had to consider if the trial judge's findings and orders were within the legal framework and if the trial judge had the power to make the orders given the High Court's decision in MRR v GRR (2010) 240 CLR 461.
The court found merit in the first four grounds of appeal, primarily due to the trial judge's failure to address section 65DAA of the Family Law Act 1975 (Cth) and the lack of proper consideration of the parties' proposals. Consequently, the appeal was allowed, and the parenting proceedings were remitted to the Family Court of Western Australia for rehearing by a different judge. The court also noted that the parties agreed that each party should bear their own costs, and appropriate costs certificates were issued for both the appeal and the rehearing.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Paragraphs 4, 5, 6, 7 and 16 of order 1 and order 2 made by Moncrieff J on
24 January 2014 be set aside, with this order to take effect upon the commencement of the rehearing of the proceedings.
3.
The parenting proceedings be remitted to the Family Court of Western Australia for rehearing by a judge other than Moncrieff J.
4.
There be no order as to costs.
5.
The Court grants to the appellant mother 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 the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
6.
The Court grants to the respondent father 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 the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
7.
The Court grants to each of the parties a costs certificate pursuant to the provisions of 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 payment under the Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing.
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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