KIPLING and SAMUELS - [2016] FCWA 72

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: KIPLING and SAMUELS [2016] FCWA 72

CORAM: THACKRAY CJ

HEARD: 22 JUNE 2016

DELIVERED : 19 AUGUST 2016

FILE NO/S: PTW 1409 of 2012

BETWEEN: MS KIPLING
Applicant
AND
MR SAMUELS
Respondent

Catchwords:

APPEAL - CHILDREN - With whom a child lives - Appeal against an order for the child to live with the father who had been largely absent from the life of the child for some years - The Magistrate did not err by treating the importance of establishing a meaningful relationship with the father as a determinative factor, but his Honour did err by failing to consider other important factors and failing to provide adequate reasons - The Magistrate failed to evaluate the qualifications of the single expert - The Magistrate failed to consider the impact of the delay in delivery of judgment - Appeal allowed - Matter remitted for rehearing.

APPEAL - COSTS - No order as to costs - Discussion of the unavailability of costs certificates in appeals from proceedings under the Family Court Act 1997 (WA).

Legislation:

Family Court Act 1997 (WA), s 66C
Federal Proceedings (Costs) Act 1981 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant: Ms Farmer
Respondent: Mr Jones

Solicitors:

Applicant: Lavan Legal
Respondent: Klimek & Co

Case(s) referred to in judgment(s):

CDJ v VAJ (1998) 197 CLR 172
CDW v LVE (2015) FLC 93-683
Champness & Hanson (2009) FLC 93-407
House v The King (1936) 55 CLR 499
Jurchenko & Foster (2014) FLC 93-598
McCall & Clark (2009) FLC 93-405
Rollings & Rollings (2009) 230 FLR 396

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1On 8 June 2015, Magistrate Kaeser made an order for an 8-year-old girl to move from the care of her mother to live with her father. The child had only spent short periods of supervised time with the father following her parents’ separation in January 2012, and even those visits had effectively come to an end three years prior to the making of the order.
2The mother appealed and his Honour granted a stay of his order before the child moved to live with the father. By the time the appeal came on for hearing before me, another year had elapsed. In that time, there had been no contact or communication between the girl and her father, save for one brief meeting in March 2016.
3If the mother’s appeal succeeds, she proposes that the matter be remitted for hearing before another magistrate. The father opposes the appeal, but his submissions allow for the possibility that I might leave the primary order intact, while making further orders to ensure an easier transition of the child into his care. Alternatively, the father invites me to remit the matter to Magistrate Kaeser for orders to be made facilitating that transition.
4For the reasons that follow, the mother’s appeal should be allowed and the…

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 KIPLING and SAMUELS

Details

AGLC: KIPLING and SAMUELS [2016] FCWA 72
Case: [2016] FCWA 72
Decision Date: 19 AUGUST 2016

CaseChat Overview and Summary

The case before the court involved an appeal by the mother, Kipling, against a Family Court order that her child, Samuels, should live with the father who had been largely absent from his life for several years. The dispute arose from the father's application to change the living arrangements of the child. The matter was heard in the Family Court of Australia, and the appeal was brought to the Federal Court of Australia.

The legal issues the court had to address included whether the Magistrate was correct in making the order for the child to live with the father, and whether the Magistrate erred in his evaluation of the evidence and the factors relevant to the child's best interests. Specifically, the court had to determine whether the Magistrate correctly assessed the importance of establishing a meaningful relationship with the father, and whether the Magistrate adequately considered other relevant factors, such as the impact of the delay in delivering the judgment and the qualifications of the expert witness.

The court found that while the Magistrate did not err in treating the importance of establishing a meaningful relationship with the father as a determinative factor, his Honour erred by failing to consider other important factors and failing to provide adequate reasons. The court also found that the Magistrate failed to evaluate the qualifications of the single expert and did not consider the impact of the delay in delivering the judgment. Consequently, the court allowed the appeal and remitted the matter for rehearing. No order as to costs was made due to the unavailability of costs certificates in appeals from proceedings under the Family Law Act.

Orders