Iris & Cohen (No 2) - [2011] FamCAFC 120

FAMILY COURT OF AUSTRALIA

IRIS & COHEN (NO 2)

[2011] FamCAFC 120

FAMILY LAW - APPEAL – CHILDREN – Appeal from interim parenting orders – Where the orders of the Federal Magistrate required the mother to relocate with the child to Townsville – Where this was not a case where the child had a relationship with the father and was unilaterally moved away from a settled environment – Where the Federal Magistrate was provided with inadequate material and no explanation given for such inadequacy – Where no application was made for an adjournment – Where the Federal Magistrate was not explicitly told that the mother’s legal aid grant was limited to her application for a transfer of the proceedings from Townsville to Wagga Wagga – Where the orders requiring the mother and the child to return to Townsville in the circumstances was impracticable – Where the Federal Magistrate did not properly consider the child and her best interests – Where the Federal Magistrate erred in failing to consider the mother’s application for a transfer of the proceedings – Appeal allowed.

FAMILY LAW - APPEAL – Re-exercise of discretion – Proceedings transferred to the Federal Magistrates Court at Canberra for determination of the appropriate geographical venue for the hearing of final parenting orders – Interim parenting orders made until further hearing – Child to live with the mother – Mother to be responsible for decisions relating to the day to day care, welfare and development of the child.

FAMILY LAW - APPEAL – Application to adduce further evidence – Where it was said that the evidence would have been filed prior to the hearing had legal aid not been confined to a change of venue – Where there was an absence of an explanation as to why an adjournment was not sought before the Federal Magistrate – Where it is not necessary to receive the further evidence as the appeal is allowed – Application dismissed.

FAMILY LAW - COSTS – Error in the orders made by the Federal Magistrate – Costs certificates granted to each party for the costs incurred in relation to both appeals.

Family Law Act 1975 (Cth) s65 DAA(5)
Federal Proceedings (Costs) Act 1981 (Cth) s 6; s 9

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Ms Iris

RESPONDENT:

Mr Cohen

INDEPENDENT CHILDREN’S LAWYER:

Geraldine Anne Murray

FILE NUMBER:

TVC

1134

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

3 June 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Ainslie-Wallace & Young JJ

HEARING DATE:

1 June 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 February 2011

LOWER COURT MNC:

[2011] FMCAfam 165

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Middleton

SOLICITOR FOR THE APPELLANT:

Farrell Lusher

COUNSEL FOR THE RESPONDENT:

Mr Fellows

SOLICITOR FOR THE RESPONDENT:

Bevan & Griffin

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Geraldine Anne Murray

Orders

That the appeal be allowed.
That the application in an appeal filed 12 May 2011 be dismissed.
The orders of…

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 (No 2)

Details

AGLC: Iris & Cohen (No 2) [2011] FamCAFC 120
Case: [2011] FamCAFC 120
Decision Date: 3 June 2011

CaseChat Overview and Summary

This case involves an appeal against interim parenting orders made by the Federal Magistrates Court in Townsville. The mother, Iris, sought to appeal the orders that required her to relocate with her child to Townsville. The Federal Magistrate had ordered that the child should return to Townsville despite there being no relationship with the father and the child having been unilaterally moved from a settled environment. The mother had limited legal aid, which was restricted to her application for a transfer of proceedings from Townsville to Wagga Wagga, a fact not communicated to the Federal Magistrate.

The court had to determine whether the Federal Magistrate erred in making the interim parenting orders and failing to consider the mother’s application for a transfer of proceedings. The court also considered whether the Federal Magistrate was provided with adequate material to make the orders and whether the orders were in the child's best interests.

The court found that the Federal Magistrate had not properly considered the best interests of the child and had made errors in the proceedings. The court noted that the Federal Magistrate was provided with inadequate material and did not receive an explanation for the inadequacy. Additionally, no application was made for an adjournment, and the mother’s limited legal aid was not explicitly communicated to the Federal Magistrate. The court concluded that the orders requiring the mother and child to return to Townsville were impracticable. The appeal was allowed, and the orders of the Federal Magistrate were set aside.

The court transferred the interim applications to the Federal Magistrates Court at Canberra for the determination of the appropriate geographical venue for the hearing of final parenting orders. It was ordered that the child should live with the mother, and the mother would be responsible for decisions relating to the child's day-to-day care, welfare, and development. Additionally, the court granted costs certificates to both parties for the costs incurred in relation to both appeals.

Orders

Orders of the court

That the appeal be allowed.

That the application in an appeal filed 12 May 2011 be dismissed.

The orders of Federal Magistrate Coker made 18 February 2011 be set aside.

The interim applications be transferred from the Federal Magistrates Court Townsville to the Federal Magistrates Court at Canberra, Wagga Wagga circuit and be listed for hearing at 12 noon on 15 June 2011.

The Court grants to the appellant mother a costs certificate pursuant to 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 her in relation to the appeals NA 15 of 2011 and NA 21 of 2011.

The Court grants to the respondent father a costs certificate pursuant to 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 him in relation to the appeals NA 15 of 2011 and NA 21 of 2011.

UNTIL FURTHER ORDER:

The child, C Iris born in September 2010, live with the mother.

The mother shall be responsible for decisions relating to the day to day care, welfare and development of the child.

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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