KERSON & BLAKE - [2018] FamCAFC 215

FAMILY COURT OF AUSTRALIA

KERSON & BLAKE

[2018] FamCAFC 215

FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Where the mother sought to return to the United States of America with the children – Application for relocation opposed by the father – Where the primary judge gave determinative weight to a finding made which failed to consider all of the evidence – Orders not supported by the evidence – Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – ADDUCE FURTHER EVIDENCE –– Where consideration of further evidence not necessary as matter remitted for rehearing – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal succeeds on an error of law – No reason as to why the provisions of s 117(1) of the Family Law Act 1975 (Cth) that each party bear his or her costs should not apply – No orders as to costs.

Family Law Act 1975 (Cth) s 117(1)

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

APPELLANT:

Ms Kerson

RESPONDENT:

Mr Blake

FILE NUMBER:

CAC

1154

2017

APPEAL NUMBER:

2018

DATE DELIVERED:

12 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Alstergren DCJ, Ainslie-Wallace & Austin JJ

HEARING DATE:

11 September 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 May 2018

LOWER COURT MNC:

[2018] FamCA 294

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Gillies SC

SOLICITOR FOR THE APPELLANT:

Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT:

Mr Tockar

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

The application to adduce further evidence filed on 27 August 2018 is dismissed.
The appeal against the orders of Gill J made on 4 May 2018 is allowed and those orders are set aside.
The matter be remitted to be heard by a judge other than Gill J.
There be no orders as to costs.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 75 of 2018
File Number: CAC 1154 of 2017

Ms Kerson

Appellant

And

Mr Blake

Respondent

REASONS FOR JUDGMENT

By Further Amended Notice of Appeal filed on 28 August 2018 Ms Kerson (“the mother”) appeals final parenting orders made by Gill J on 4 May 2018 in proceedings between her and Mr Blake (“the father”). The orders concern the parties’ children, B (born…

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 KERSON & BLAKE

Details

AGLC: KERSON & BLAKE [2018] FamCAFC 215
Case: [2018] FamCAFC 215
Decision Date: 12 November 2018

CaseChat Overview and Summary

In the case of Kerson & Blake, the mother sought to relocate to the United States of America with their children, a move opposed by the father. The Family Court was tasked with deciding on the relocation application, and ultimately, the primary judge ruled against the mother's proposal. The mother subsequently appealed the decision, arguing that the judge had erred in their assessment and had not properly considered all the evidence.

The appeal court had to determine whether the primary judge's decision was legally sound and whether the judge had correctly applied the relevant legal principles when evaluating the relocation application. The court found that the primary judge had given determinative weight to a particular finding, which did not consider all the evidence. As a result, the orders made by the primary judge were not supported by the evidence, leading to the conclusion that the appeal should be allowed.

The appeal was successful due to an error of law, and there was no reason to deviate from the standard cost provisions outlined in section 117(1) of the Family Law Act 1975 (Cth), which stipulates that each party should bear their own costs. Consequently, no orders were made regarding costs. The application to adduce further evidence was dismissed as the matter was to be remitted for rehearing. The final orders included dismissing the application for further evidence, allowing the appeal against the orders of Gill J, setting aside those orders, remitting the matter for a hearing by a different judge, and making no orders as to costs.

Orders

Orders of the court

The application to adduce further evidence filed on 27 August 2018 is dismissed.

The appeal against the orders of Gill J made on 4 May 2018 is allowed and those orders are set aside.

The matter be remitted to be heard by a judge other than Gill J.

There be no orders as to costs.

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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