JANOS & ALTON - [2018] FamCAFC 209

FAMILY COURT OF AUSTRALIA

JANOS & ALTON

[2018] FamCAFC 209

FAMILY LAW – APPEAL –Where the respondent concedes error by the primary judge – Where there was appealable error – Appeal allowed – Consent orders made.

FAMILY LAW – APPEAL – COSTS - COSTS CERTIFICATES – Whether costs certificates should be ordered – Where the appeal succeeded upon questions of law – Costs certificates ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

Federal Proceedings (Costs) Act 1983 (Cth) ss 6, 8, 9

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Sampson v Harnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365

APPELLANT:

Ms Janos

RESPONDENT:

Mr Alton

FILE NUMBER:

CAC

931

2014

APPEAL NUMBER:

2018

DATE DELIVERED:

31 October 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Alstergren DCJ, Ainslie-Wallace and Watts JJ

HEARING DATE:

31 October 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 December 2017

LOWER COURT MNC:

[2017] FCCA 3222

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Johnston

SOLICITOR FOR THE APPELLANT:

Barker & Barker

COUNSEL FOR THE RESPONDENT:

Mr Othen

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

IT IS ORDERED BY CONSENT:

The appellant have leave to amend the Notice of Appeal to challenge paragraphs 1 – 29 of the orders made by Judge Neville on 21 December 2017.
The appeal be allowed.
The orders made by Judge Neville on 21 December 2017 be set aside.
The proceedings be remitted to the Federal Circuit Court for rehearing before a judge other than Judge Neville and are recommended to be given priority.
The following orders be made by consent until further order:
(a)The parties have equal shared parental responsibility for the child;
(b)The child live with the mother;
(c)The mother not be permitted to relocate the child’s residence away from Canberra in the Australian Capital Territory;
(d)The child spend time with his father as agreed between the parties, but failing agreement, from after school Friday until before school Wednesday each alternative week;
(e)If the child is not otherwise in the care of his father on the father’s birthday, he will spend from 3:00 pm to 7:00 pm with the father;
(f)If the child is not otherwise in the care of his mother on the mother’s birthday, he will spend from 3:00 pm to 7:00 pm with the mother;
(g)For the purpose of orders (d) – (f) above, changeover will occur at either the child’s school or at an agreed public place;
(h)Each parent will encourage and facilitate the child communicating with the parent with whom he is not currently spending time by telephone, mobile, Skype or other internet-based communication application at an agreed time each Monday, Wednesday and Friday (unless otherwise agreed) and at any reasonable time initiated by the child;
(i)For the summer school holidays of 2018/19 as agreed and failing agreement the child spend time:

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 JANOS & ALTON

Details

AGLC: JANOS & ALTON [2018] FamCAFC 209
Case: [2018] FamCAFC 209
Decision Date: 31 October 2018

CaseChat Overview and Summary

In the appeal, Janos (the appellant) challenged the orders made by Judge Neville on 21 December 2017. The respondent conceded that the primary judge erred, and the appeal was allowed. The orders made by Judge Neville were set aside, and the proceedings were remitted to the Federal Circuit Court for rehearing. The court granted the appellant leave to amend the Notice of Appeal to challenge the orders made by Judge Neville. Consent orders were made to provide interim parenting arrangements until the rehearing.

The legal issues before the court included whether the primary judge had erred in making the orders, and if so, whether the appeal should be allowed. The court was also required to decide whether costs certificates should be ordered for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

The court found that the primary judge had erred in making the orders, and the appeal was allowed. The court noted that the respondent conceded error by the primary judge, and there was appealable error. The court set aside the orders made by Judge Neville and remitted the proceedings to the Federal Circuit Court for rehearing before a judge other than Judge Neville. The court recommended that the rehearing be given priority. The court also ordered that costs certificates be issued for both parties and the Independent Children’s Lawyer for the appeal and rehearing.

The court ordered that the parties have equal shared parental responsibility for the child and that the child live with the mother. The mother was not permitted to relocate the child’s residence away from Canberra in the Australian Capital Territory. The child was to spend time with his father as agreed between the parties, but failing agreement, from after school Friday until before school Wednesday each alternative week. The child was also to spend time with his father on his birthday and with his mother on her birthday. Changeover was to occur at either the child’s school or at an agreed public place. Each parent was to encourage and facilitate the child communicating with the parent with whom he was not currently spending time by telephone, mobile, Skype or other internet-based communication application at an agreed time each Monday, Wednesday and Friday (unless otherwise agreed) and at any reasonable time initiated by the child. The court also made orders for the summer school holidays of 2018/19 and set out the particulars of the obligations these orders create and the particulars of the consequences that may flow if a person contravenes these orders. The court further ordered that there be no order as to costs as between the parties in respect of this appeal and granted the appellant a costs certificate for the appeal. The court also granted the respondent and the Independent Children’s Lawyer costs certificates for the appeal and the appellant, the respondent and the Independent Children’s Lawyer costs certificates for the rehearing.

Orders

Orders of the court

IT IS ORDERED BY CONSENT:

The appellant have leave to amend the Notice of Appeal to challenge paragraphs 1 – 29 of the orders made by Judge Neville on 21 December 2017.

The appeal be allowed.

The orders made by Judge Neville on 21 December 2017 be set aside.

The proceedings be remitted to the Federal Circuit Court for rehearing before a judge other than Judge Neville and are recommended to be given priority.

The following orders be made by consent until further order:

(a) The parties have equal shared parental responsibility for the child;

(b) The child live with the mother;

(c) The mother not be permitted to relocate the child’s residence away from Canberra in the Australian Capital Territory;

(d) The child spend time with his father as agreed between the parties, but failing agreement, from after school Friday until before school Wednesday each alternative week;

(e) If the child is not otherwise in the care of his father on the father’s birthday, he will spend from 3:00 pm to 7:00 pm with the father;

(f) If the child is not otherwise in the care of his mother on the mother’s birthday, he will spend from 3:00 pm to 7:00 pm with the mother;

(g) For the purpose of orders (d) – (f) above, changeover will occur at either the child’s school or at an agreed public place;

(h) Each parent will encourage and facilitate the child communicating with the parent with whom he is not currently spending time by telephone, mobile, Skype or other internet-based communication application at an agreed time each Monday, Wednesday and Friday (unless otherwise agreed) and at any reasonable time initiated by the child;

(i) For the summer school holidays of 2018/19 as agreed and failing agreement the child spend time:

(i) With the father from after school on Friday 21 December 2018 until 4.00pm on 24 December 2018;

(ii) With the mother from 4:00pm on the 24 December 2018 to 4:00pm on the 31 December 2018 (being a period of 7 nights);

(iii) With the father from 4:00pm on the 31 December 2018 to 4:00pm on the 7 January 2019, (being a period of 7 nights);

(iv) With the mother from 4:00pm on the 7 January 2019 to 4:00pm on the 14 January 2019 (being a period of 7 nights);

(v) With the father from 4:00pm on the 14 January 2019 to 4:00pm on the 21 January 2019, (being a period of 7 nights);

(vi) Following 21 January 2019 the usual term time arrangements will apply; and

(vii) With the father from 4.00pm on Tuesday 29 January 2019 until 9.00am on Wednesday 30 January 2019.

(j) Pursuant to s 62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available is set out in the Fact Sheet attached hereto; and

(k) Pursuant to s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may flow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

IT IS FURTHER ORDERED:

There be no order as to costs as between the parties in respect of this appeal.

The Court grants to the appellant 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 in respect of the costs incurred by the appellant in relation to the appeal.

The Court grants to the respondent and the Independent Children’s Lawyer 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 and the Independent Children’s Lawyer in respect of the costs incurred by the respondent and the Independent Children’s Lawyer in relation to the appeal.

The Court grants to the appellant, the respondent and the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates 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 and the Independent Children’s Lawyer in respect of the costs incurred in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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