IRIS & COHEN - [2011] FamCAFC 77

FAMILY COURT OF AUSTRALIA

IRIS & COHEN

[2011] FamCAFC 77

FAMILY LAW - APPEAL – CHILDREN – Interim orders – Extremely young child – Where the mother moved prior to the birth of the child – Where there was no opportunity for the father to spend time with the child given the geographical distances – Where the Federal Magistrate ordered that the mother was to return to Townsville with the child – Where the mother appealed the interim orders and filed an application for a stay – Where the Federal Magistrate refused to stay the orders pending the outcome of the mother’s appeal.

FAMILY LAW - APPEAL – CHILDREN – The mother submitted that the order requiring her to return to Townsville was “an imposition of enormous nature” and that the practicalities and other alternatives were not considered – Where it was submitted that in refusing the stay, undue weight had been given to the importance of the father spending time with the child prior to any hearing of the matter with detailed evidence – Where the appeal was from a discretionary judgment – Where the substantive appeal was seen to have considerable merit – Where the concern about the delay was remedied as the appeal can be heard in the May Full Court sittings – Where the Federal Magistrate erred in finding that the appeal would be rendered nugatory by the refusal to grant a stay – Where no real weight was given to the mother’s financial circumstances and the father’s position – Where the Federal Magistrate failed to consider that this was not a case where the child was having a relationship with the father and was unilaterally moved away from a settled environment – Where the Federal Magistrate failed to consider that there was no evidence indicating that the mother was not properly caring for the child – Where the Federal Magistrate should have after ordering an Independent Children’s Lawyer waited for the expert report and made no order until the first appearance of the Independent Children’s Lawyer – Where the Federal Magistrate failed to give no real consideration to the mother’s application that the matter be heard in Wagga Wagga – Appeal allowed.

FAMILY LAW - COSTS – Costs of the appeal reserved to the Full Court for determination after the hearing of the substantive appeal.

Family Law Act 1975 (Cth)

Clemett & Clemett (1981) FLC 91-013
EJK & TSL [2006] FamCA 806
Friscioni & Friscioni [2009] FamCAFC 43

Gronow & Gronow (1979) 144 CLR 513
House v R (1936) 55 CLR 499
Morgan & Miles (2007) FLC 93-343
Trahn & Long (No. 2) [2008] FamCAFC 194

APPELLANT:

Ms Iris

RESPONDENT:

Mr Cohen

FILE NUMBER:

TVC

1134

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

5 April 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

5 April 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

11 March 2011

LOWER COURT MNC:

[2011] FMCAfam180

REPRESENTATION

COUNSEL FOR…

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 IRIS & COHEN

Details

AGLC: IRIS & COHEN [2011] FamCAFC 77
Case: [2011] FamCAFC 77
Decision Date: 5 April 2011

CaseChat Overview and Summary

In the case of IRIS & COHEN, the mother appealed an interim order made by a Federal Magistrate, which required her to return to Townsville with her extremely young child. The father had not had the opportunity to spend time with the child due to the mother moving before the child’s birth, and the substantial geographical distances involved. The mother argued that the order was an imposition of enormous nature and that the practicalities and other alternatives were not considered. She also submitted that the Federal Magistrate had given undue weight to the importance of the father spending time with the child prior to any hearing of the matter without detailed evidence.

The court needed to decide whether the Federal Magistrate had erred in making the interim order and in refusing the mother’s application for a stay. The court also had to determine whether the Federal Magistrate had given proper consideration to the mother’s financial circumstances, the father’s position, and the Independent Children’s Lawyer's report. The court found that the Federal Magistrate had erred in several respects, including not considering that the child was not having a relationship with the father, and there was no evidence indicating that the mother was not properly caring for the child. The court concluded that the appeal had considerable merit and allowed the appeal.

The court stayed the interim orders made by the Federal Magistrate until the hearing and determination of the substantive appeal. The costs of the appeal were reserved to the Full Court. The mother was granted leave to appeal, and the interim orders were stayed pending the outcome of the appeal. The court’s decision highlights the importance of considering all relevant factors in making interim orders in family law cases, particularly where there are young children involved.

Orders

Orders of the court

The appeal NA 21/2011 be allowed.

Until the hearing and determination of appeal NA 15/2011, order 1 made by Federal Magistrate Coker on 18 February 2011 and order 2 made by Federal Magistrate Coker on 11 March 2011 be stayed.

The costs of the appeal NA 21/2011 be reserved to the Full Court.

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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