Koldsjor & Addington - [2009] FamCAFC 21

FAMILY COURT OF AUSTRALIA

KOLDSJOR & ADDINGTON

[2009] FamCAFC 21

FAMILY LAW – CHILDREN – Best interests of the child – Change of name – Where the mother sought to change the child's surname to include the mother's surname – where the mother's surname was her first married surname – Where the mother had used that surname for 19 years – Where the child's half sibling had the same surname as the mother – Where the trial Judge found change of name not in the child's best interest.

FAMILY LAW – APPEAL – From decision of Family Court judge – Whether the trial Judge failed to give adequate reasons – Whether the trial Judge made inconsistent findings – Matter remitted for rehearing

FAMILY LAW – APPEAL - Whether an order by the trial Judge was a s 64 parenting order or an injunction under s 68B(1) – Whether in the absence of a specific legislative requirement the child's best interest should be the paramount consideration if the order was a s 68B injunction – No submissions received on the issue.

FAMILY LAW – COSTS – Federal Proceedings (Costs) Act 1981 – Application for costs certificates by the husband – Costs certificates granted to the husband – Costs certificates not sought by the wife – Leave granted to the wife to apply for costs certificates.

Family Law Act 1975, s 60CA, s 60CC, s 64, s68B, Division 12A Pt VII
Federal Proceedings (Costs) Act 1981

A & J (1995) FLC 92-619
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Bennett & Bennett (1991) FLC 92-191
Chamberlain v R (No 2) (1984) 153 CLR 521
Flanagan & Handcock (2001) FLC 93-074
Marsden & Winch (No 3) [2007] FamCA 1364
Sun Alliance Insurance Ltd v Massoud [1989] VR8

APPELLANT:

Ms Koldsjor

RESPONDENT:

Mr Addington

FILE NUMBER:

SYF

4035

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

12 February 2009

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Boland & Thackray JJ

HEARING DATE:

26 November 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

7 March 2008

LOWER COURT MNC:

[2008] FamCA 143

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lloyd

SOLICITOR FOR THE APPELLANT:

Musgrave Peach Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket Family Lawyers

Orders

(1)That the appeal against orders 8 and 9.3 of the Honourable Justice O’Ryan made on 7 March 2008 be allowed.
(2)That the amended application of the respondent father filed 21 May 2007 and the amended response of the appellant mother filed 26 April 2007 insofar as they concern the name of the child … Addington be remitted for rehearing before a judicial officer other than the Honourable Justice O’Ryan.
(3)That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate…

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 Koldsjor & Addington

Details

AGLC: Koldsjor & Addington [2009] FamCAFC 21
Case: [2009] FamCAFC 21
Decision Date: 12 February 2009

CaseChat Overview and Summary

In the appeal, Koldsjor & Addington, the parties were a mother and father whose child's name change was at issue. The mother sought to alter the child's surname to include her own surname, which had been her first married surname and which she had used for 19 years. The child's half-sibling shared the same surname as the mother. The Family Court judge had ruled that a name change was not in the child's best interest, a decision the mother appealed. The appeal raised several questions about the trial judge's reasoning, the nature of the orders made, and the applicability of the child's best interests as a paramount consideration.

The court examined whether the trial judge had provided adequate reasons for their decision and if there were any inconsistencies in the findings. It was determined that the appeal against certain orders should be allowed, and the matter should be remitted for a rehearing before a different judicial officer. Additionally, the court considered whether an order made by the trial judge was a parenting order under section 64 or an injunction under section 68B(1), and whether the child's best interest should be the paramount consideration if it was an injunction, though no submissions were received on this issue.

The court found that the trial judge had failed to give adequate reasons and made inconsistent findings, leading to the appeal being allowed in part. The court granted the father a costs certificate under the Federal Proceedings (Costs) Act 1981 for costs incurred during the appeal and the rehearing. The mother was granted leave to apply for costs certificates within 28 days of the making of these orders. The final orders included allowing the appeal against certain orders, remitting the matter for rehearing, and granting costs certificates to the father and leave to the mother to apply for costs certificates.

Orders

Orders of the court

(1) That the appeal against orders 8 and 9.3 of the Honourable Justice O’Ryan made on 7 March 2008 be allowed.

(2) That the amended application of the respondent father filed 21 May 2007 and the amended response of the appellant mother filed 26 April 2007 insofar as they concern the name of the child … Addington be remitted for rehearing before a judicial officer other than the Honourable Justice O’Ryan.

(3) That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 the respondent in relation to the appeal against the orders made on 7 March 2008.

(4) That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 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 such part as the Attorney-General considers appropriate of any costs incurred by the respondent in relation to the rehearing referred to in paragraph 2 of these orders.

(5) That the appellant mother have leave to apply for costs certificates pursuant to ss 8 and 9 of the Federal Proceedings (Costs) Act 1981, such leave to be exercised within 28 days of the making of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.