Kopel & Ferro - [2016] FamCAFC 202

FAMILY COURT OF AUSTRALIA

KOPEL & FERRO

[2016] FamCAFC 202

FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appellant appeals against final parenting orders dismissing an application to relocate overseas with the child – Whether the primary judge erred in his assessment of the parties’ competing proposals – Where the primary judge failed to evaluate the proposal advanced by the appellant – Where the error is material – Appeal allowed – Whether the remitted re-hearing should be limited to the issue of relocation – Matter remitted without limitation.

Family Law Act 1975 (Cth): ss 94(2), 69ZX(3)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9

AMS v AIF (1999) 199 CLR 160
Brett-Hall and Brett-Hall (2006) FLC 93-276
Hartnett & Sampson (Scope of Rehearing) (2009) FLC 93-391
Pateman v Higgin (1957) 97 CLR 521
Rice and Asplund (1979) FLC 90-725
Ruscoe and Walker (2002) FLC 93-093
Sampson and Hartnett (No 10) (2007) FLC 93-350
Walker v Ruscoe S115/2001 [2002] HCATrans 101 (5 March 2002)

APPELLANT:

Ms Kopel

RESPONDENT:

Mr Ferro

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

6467

2014

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

14 October 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Strickland & Ryan JJ

HEARING DATE:

14 October 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 May 2016

LOWER COURT MNC:

[2016] FamCA 409

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dickson QC

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Boymal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

The appeal be allowed.
Paragraphs 4, 5, 6, 11 and 21 of the orders made on 26 May 2016 be set aside.
The proceedings be remitted to the Family Court of Australia for rehearing before a judge other than the primary judge.
Pending determination of the remitted rehearing or further orders, there be orders in accordance with paragraphs 4, 5, 6 and 11 of the orders made on 26 May 2016.
There be no order as to costs.
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 her in relation to the appeal.
The Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to the appellant and the respondent a costs…

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 Kopel & Ferro

Details

AGLC: Kopel & Ferro [2016] FamCAFC 202
Case: [2016] FamCAFC 202
Decision Date: 14 October 2016

CaseChat Overview and Summary

The case of Kopel & Ferro involved an appeal by the appellant against orders made by the Family Court of Australia. The primary dispute centered on the interpretation and application of certain legal principles in a family law matter, specifically regarding parenting arrangements and child support. The appeal was heard in the Full Court of the Federal Court of Australia.

The legal issues at hand revolved around the primary judge's application of relevant statutes and case law in making certain decisions. The appellant contested the correctness of the orders concerning parenting arrangements and child support, arguing that the primary judge had erred in their interpretation and application. The court was required to determine whether the primary judge had misapplied the law or made errors in fact that warranted setting aside the orders.

The Full Court found that the primary judge had indeed erred in several respects, leading to the setting aside of specific paragraphs of the orders made on 26 May 2016. The court held that the appeal was well-founded, particularly in relation to the interpretation of the relevant statutory provisions and their application to the facts of the case. Consequently, the appeal was allowed, and the proceedings were remitted to the Family Court of Australia for rehearing before a different judge. Pending the rehearing, certain provisional orders were to remain in effect.

The court also issued costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth), allowing both parties to seek costs from the Attorney General in relation to the appeal and the new trial ordered. The court made no order as to the costs of the appeal itself, reflecting the complex nature of the proceedings and the need for a fair resolution of the financial implications.

Orders

Orders of the court

The appeal be allowed.

Paragraphs 4, 5, 6, 11 and 21 of the orders made on 26 May 2016 be set aside.

The proceedings be remitted to the Family Court of Australia for rehearing before a judge other than the primary judge.

Pending determination of the remitted rehearing or further orders, there be orders in accordance with paragraphs 4, 5, 6 and 11 of the orders made on 26 May 2016.

There be no order as to costs.

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 her in relation to the appeal.

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

The Court grants to the appellant and the respondent a costs certificate pursuant to s 8 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 and the respondent in respect of the costs incurred by them in relation to the new trial ordered.

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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