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Heaton v Heaton

Heaton v Heaton

Case [2012] FamCAFC 139 23 August 2012

Parental Responsibility

Best Interests of the Child

Relocation of Children

Equal Shared Parental Responsibility

Family Law

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FAMILY COURT OF AUSTRALIA

HEATON & HEATON

[2012] FamCAFC 139

FAMILY LAW – APPEAL – CHILDREN – Relocation.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461

APPELLANT:

Ms Heaton

RESPONDENT:

Mr Heaton

FILE NUMBER:

NCC

1835

2010

APPEAL NUMBER:

2012

DATE ORDERS MADE:

23 August 2012

DATE REASONS PUBLISHED:

31 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Ryan JJ

HEARING DATE:

23 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

23 March 2012

LOWER COURT MNC:

[2012] FMCAfam 244

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Graham

SOLICITOR FOR THE APPELLANT:

Byrnes & Cox Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders made on 23 August 2012

That the appeal be allowed.
That orders 12-20 inclusive of the orders made by Federal Magistrate Dunkley on 23 March 2012 be set aside.
That the Full Court makes interim orders in terms of paragraphs 12-19 of the orders made by Federal Magistrate Dunkley on 23 March 2012.
That the parenting proceedings be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Dunkley.
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 (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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
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 (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 the respondent father in relation to the appeal.
That the Court grants to each party 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 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.

IT IS NOTED:

It is requested that the Federal Magistrates Court gives such expedition of the re-hearing of the proceedings as that Court deems appropriate.
It would desirable that the re-hearing be heard in the Sydney Registry of the Federal Magistrates Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT…

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 Heaton v Heaton

Details

AGLC: Heaton v Heaton [2012] FamCAFC 139
Case: [2012] FamCAFC 139
Decision Date: 23 August 2012

CaseChat Overview and Summary

The appeal in Heaton v Heaton was brought by the mother, Ms Heaton, against orders made by Dunkley FM on 23 March 2012 concerning the two children of her marriage to Mr Heaton, E and J. The mother sought an order for equal shared parental responsibility, that the children live with her and that she be permitted to move with the children to Port Macquarie. The father opposed the mother being permitted to relocate with the children and proposed that if the mother was not permitted to relocate the residence of the children, they should spend equal time with each parent. The mother proposed that if she was not permitted to relocate the residence of the children, she would remain in Sydney with them. The Federal Magistrate declined to permit the mother to relocate with the children to Port Macquarie and ordered that the parties have equal shared parental responsibility for the children and that, conditional on the mother living within 15 kilometres of the school at which both children attend, the children live with her and the father on a week about basis. Should the mother not live within that geographical radius, then the children will live with the father and spend time with the mother.

The appeal grounds challenged the Federal Magistrate's approach to the issue of relocation and his finding that it was in the children's best interest that they not be moved to Port Macquarie. The appeal succeeded. The Full Court found that the Federal Magistrate failed to follow the "legislative pathway" in considering the mother's application that she be permitted to move to Port Macquarie with the children and in determining whether that proposed move was in the children's best interests. The Full Court found that the Federal Magistrate was first required to determine the children's best interests by reference to the well known "primary" and "additional" factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother's "fall back position" of remaining in Sydney to stay with the children required consideration, the Full Court found that in elevating that concession to the status of a proposal resulted in the Federal Magistrate's failure to adequately evaluate her application to relocate and misapplication of the section. The Full Court found that it was only in this way that the Federal Magistrate could have properly considered all of the relevant factors to come to a determination of the children's best interests. The Full Court found that the Federal Magistrate was then obliged to consider the provisions of s 65DAA(1). The Full Court found that the Federal Magistrate treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. The Full Court found that the Federal Magistrate did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances. These errors are such that the appeal must succeed.

The appeal was allowed, the orders made by the Federal Magistrate on 23 March 2012 were set aside, and the parenting proceedings were remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Dunkley. The Full Court granted 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 that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal. The Full Court also granted 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 that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal. The Full Court granted to each party 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 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.

Orders