Klein & Klein - [2010] FamCAFC 150

Family Court Of Australia

KLEIN & KLEIN

[2010] FamCAFC 150

FAMILY LAW - APPEAL – Where the Federal Magistrate expressed the view that an equal and substantial and significant arrangement was desirable but failed to make a practical assessment of whether such arrangements were feasible – Where there was no consideration of where the Mother would live; what support she would have and other practical considerations – Where the Mother would also lose the significant benefit of the support of members of the maternal family – Error established

FAMILY LAW - APPEAL – Where the family consultant was not required to consider each and every one of the relevant provisions of Pt VII of the Act but only those matters that were relevant to the best interests of the children – The role of the family consultant – Where the family consultant is ordinarily an expert witness whose task is to assist and advise the court – Where the Federal Magistrate was in error in relation to the reasons she gave for rejecting the opinions of the family consultant – Error established

FAMILY LAW - APPEAL – Whether the Federal Magistrate found that the Mother was an unreliable witness and that this finding was wrong and resulted in findings and orders prejudicial to the Mother – Credibility of the Mother – Error established

FAMILY LAW - COSTS – Where both parties are financially impecunious – Where the Father was in receipt of legal aid and the Mother was not and where this is unfair to the Mother – Where an earlier hearing of the appeal was vacated by counsel for the Father due to insufficient time to prepare for the hearing – Costs certificates granted to both parties regarding the appeal and the rehearing but not for the vacated hearing

A & A: Relocation Approach (2000) 26 Fam LR 382
AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo (2010) FamCAFC 53
Hall and Hall (1979) FLC 90-713
KB & TC (2005) 33 Fam LR 471
MRR v GR (2010) 263 ALR 368
Rice and Asplund (1979) FLC 90-725
Sampson v Hartnett (2007) 38 Fam LR 315
Taylor and Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

Anthony Dickey QC, ‘Reflections on MRR v GR – Case Note’ (2010) 84(5) ALJ 296

Evidence Act 1995 (Cth) – s 80
Family Law Act 1975 (“the Act”) – s 60B, s 60CA, s 60CC, s 61DA, s 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9

APPELLANT:

MS KLEIN

RESPONDENT:

MR KLEIN

FILE NUMBER:

MLC

1118

2009

APPEAL NUMBER:

2009

DATE DELIVERED:

18 August 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

May, O’Ryan & Bennett JJ

HEARING DATE:

7 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

13 August 2009

LOWER COURT MNC:

[2009] FMCAfam 794

Representation

COUNSEL FOR THE APPELLANT:

Dennis Baker

SOLICITOR FOR THE APPELLANT:

Cash & Stavroulakis…

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.

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Details

AGLC: Klein & Klein [2010] FamCAFC 150
Case: [2010] FamCAFC 150
Decision Date: 18 August 2010

CaseChat Overview and Summary

In the case of Klein & Klein, the appeal centred on the determination of parenting arrangements for the children of the parties, who were not married. The dispute was heard and determined by the Federal Circuit and Family Court of Australia, with the appeal being heard by the Full Court of the Family Court of Australia. The appeal raised several issues pertaining to the primary judge's consideration of the best interests of the children, the role of the family consultant, and the credibility of the mother as a witness.

The court was required to assess whether the primary judge erred in determining that an equal and substantial and significant arrangement was desirable without making a practical assessment of its feasibility. The appeal also questioned the family consultant's role in considering only the relevant provisions of the Family Law Act that pertained to the children's best interests. Additionally, the appeal contested the primary judge's finding that the mother was an unreliable witness and whether this affected the findings and orders made against her.

The court found that the primary judge failed to make a practical assessment of whether the proposed equal and substantial and significant arrangement was feasible, and did not consider where the mother would live, what support she would have, and other practical considerations. The court also found that the primary judge erred in rejecting the opinions of the family consultant, who was not required to consider every provision of the Act but only those relevant to the children's best interests. The court further determined that the primary judge's finding that the mother was an unreliable witness was incorrect and resulted in findings and orders that were prejudicial to her.

As a result of these findings, the appeal was allowed, and the matter was remitted to the Federal Circuit and Family Court of Australia for rehearing. The court also granted costs certificates to both parties regarding the appeal and the rehearing, but not for the vacated hearing. The court noted the financial difficulties of both parties and the unfairness of the mother not receiving legal aid while the father was.

Orders