Jackson & Macek - [2015] FamCAFC 114

FAMILY COURT OF AUSTRALIA

JACKSON & MACEK

[2015] FamCAFC 114

FAMILY LAW – APPEAL – Where the mother appeals interim parenting orders concerning an eleven month old child–Where orders made that the child spends one day on and one day off with each parent – Where mother restrained from breastfeeding the child after she had acquired a tattoo – Assessment of risk – Whether there was a risk of harm to the child if the mother continued to breastfeed – Where no expert medical evidence – Matters of common knowledge – Section 144(1)(b) Evidence Act 1995 (Cth) discussed – Whether the trial judge failed to properly apply s 60CC of the Family Law Act 1975 (Cth) – Appeal allowed.

FAMILY LAW – COSTS – Error of law – Costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) issued.

Evidence Act 1995 (Cth) s 144
Family Law Act 1975 (Cth) s 60CC, s 64B(2)(i)
Federal Proceedings (Costs) Act 1981 (Cth)

Goode and Goode (2006) FLC 93-286
Marvel v Marvel (2010) 240 FLR 367
McGregor & McGregor (2012) FLC 93-507
Norrie v NSW Registrar Births, Deaths & Marriages (2013) 84 NSWLR 697
Re Baby A [1999] NSWSC 787
Reid & Clements and Ors [2015] FamCAFC 33

APPELLANT:

Ms Jackson

RESPONDENT:

Mr Macek

FILE NUMBER:

NCC

1295

2015

APPEAL NUMBER:

2015

DATE DELIVERED:

19 June 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge and Hannam JJ

HEARING DATE:

19 June 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 June 2015

LOWER COURT MNC:

[2015] FCCA 1656

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Cantrall

SOLICITOR FOR THE APPELLANT:

Virginia Taylor Partners

SOLICITOR FOR THE RESPONDENT:

Joplin Lawyers

Orders

The appeal be allowed.
That orders 1, 4 and 12 of the Orders made on 5 June 2015 be set aside.
That orders 13 and 14 of the Orders made on 5 June 2015 be set aside to the extent that those orders restrain the mother from permitting the child to be in contact with the maternal grandmother.
The question of the child’s time with the father be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Myers.
Pending the re-hearing referred to in the above order or further order the child shall spend time with the father on two occasions each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant…

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 Jackson & Macek

Details

AGLC: Jackson & Macek [2015] FamCAFC 114
Case: [2015] FamCAFC 114
Decision Date: 19 June 2015

CaseChat Overview and Summary

In the matter of Jackson & Macek, the mother appealed interim parenting orders concerning an eleven-month-old child. The child was to alternate between the parents on a one-day-on, one-day-off basis. The mother was also restrained from breastfeeding the child after getting a tattoo. The Federal Circuit Court of Australia was tasked with determining the appeal.

The court was required to decide whether there was a risk of harm to the child if the mother continued to breastfeed, and whether the trial judge properly applied section 60CC of the Family Law Act 1975. Given the lack of expert medical evidence, the court relied on matters of common knowledge. The court considered section 144(1)(b) of the Evidence Act 1995 and found that the trial judge had not properly applied section 60CC of the Family Law Act.

The court allowed the appeal and set aside certain orders that restrained the mother from breastfeeding the child and from permitting the child to be in contact with the maternal grandmother. The court also remitted the question of the child's time with the father for re-hearing in the Federal Circuit Court by a different judge. Pending the re-hearing, the child was to spend time with the father on two occasions each week for five hours. The court also issued costs certificates to both parties under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

The appeal be allowed.

That orders 1, 4 and 12 of the Orders made on 5 June 2015 be set aside.

That orders 13 and 14 of the Orders made on 5 June 2015 be set aside to the extent that those orders restrain the mother from permitting the child to be in contact with the maternal grandmother.

The question of the child’s time with the father be remitted for re-hearing in the Federal Circuit Court by a judge other than Judge Myers.

Pending the re-hearing referred to in the above order or further order the child shall spend time with the father on two occasions each week for five hours as agreed between the parties and in default of agreement from 10:00 am to 3:00 pm each Wednesday and Sunday.

There be no order as to costs.

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 in respect of the costs incurred by her in relation to the appeal.

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 in respect of the costs incurred by him in relation to the appeal.

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 a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the re-hearing ordered.

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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