FAMILY COURT OF AUSTRALIA
| KULAT & AZZARUDIN | [2018] FamCAFC 97 |
| FAMILY LAW – APPEAL – PARENTING – where the appellant contended the trial judge erred in the exercise of her discretion and provided inadequate reasons concerning application of the rule in Rice and Asplund (1979) FLC 90-725 – where no application was made by the appellant to have the rule in Rice and Asplund dealt with as a preliminary issue – where the rule was considered after a family report was undertaken and at the end of a trial – where previous final parenting orders made in 2012 provided for a change in the child’s primary care arrangements and for the child to relocate to Country C in 2018 to commence secondary school – where the child expressed views to the single expert report writer contrary to the terms of the 2012 orders – where the child’s intelligence and level of maturity was “impressive” – where the operative terms of the 2012 orders carried profound changes for the child – where ample evidence existed of circumstances requiring reconsideration of the 2012 orders – where the reasons for judgment demonstrated that the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the Rice and Asplund issue – where the trial judge properly exercised her discretion in assigning weight to the child’s views as one of the considerations taken into account pursuant to s 60CC of the Family Law Act 1975 (Cth) – where there is no merit in the appellant’s challenges – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $18,515.10 |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117 Family Law Rules 2004 (Cth) r 15.45 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Morton & Berry (2014) FLC 93-613; [2014] FamCAFC 208 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 U v U (2002) 211 CLR 238; [2002] HCA 36 Zabaneh and Zabaneh (1986) FLC 91-766; [1986] FamCA 18 |
| APPELLANT: | Mr Kulat |
| RESPONDENT: | Ms Azzarudin |
| FILE NUMBER: | BRC | 1132 | of | 2012 |
| APPEAL NUMBER: | NOA | 2 | of | 2018 |
| DATE DELIVERED: | 24 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Forrest JJ |
| HEARING DATE: | 16 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2017 |
| LOWER COURT MNC: | [2017] FamCA 1105 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Anderson |
| SOLICITOR FOR THE APPELLANT: | Steven Watkinson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Horsley |
| SOLICITOR FOR THE RESPONDENT: | Barry.Nilsson. Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal proceedings in the fixed sum of $18,515.10 within thirty (30) days.
Note:…
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- AGLC
- Kulat & Azzarudin [2018] FamCAFC 97
- Case
- [2018] FamCAFC 97
- Decision Date
CaseChat Overview and Summary
Kulat & Azzarudin involved the appellant appealing against parenting orders made by a Family Court trial judge. The appellant argued that the trial judge erred in exercising her discretion and provided inadequate reasons concerning the application of the rule in Rice and Asplund. The appeal was based on the premise that the trial judge failed to adequately consider the rule in Rice and Asplund, which is a guideline for considering a child's wishes in parenting disputes. The child in question had expressed contrary views to those stipulated in the 2012 final parenting orders. These orders had mandated a change in the child's primary care arrangements and relocation to Country C for secondary school. The child's intelligence and maturity were described as impressive, and the 2012 orders carried significant changes for the child.
The legal issues before the court centred on whether the trial judge had correctly applied the rule in Rice and Asplund and whether the child's views were appropriately considered under s 60CC of the Family Law Act 1975 (Cth). The appellant contended that the trial judge had failed to adequately address the rule, which would have warranted its consideration as a preliminary issue. However, the court noted that the rule was addressed after a family report was completed and at the conclusion of the trial. The court found that the trial judge had properly exercised her discretion in assigning weight to the child's views, taking into account the child's intelligence, maturity, and the profound changes the 2012 orders would entail for the child. The court also found that the trial judge's reasons demonstrated consideration of various factors beyond the parties' disagreement.
The court dismissed the appeal, holding that the trial judge had not erred in her application of the rule in Rice and Asplund. The reasons provided by the trial judge demonstrated a thorough consideration of the child's views and other relevant factors. The court concluded that there was ample evidence to support reconsideration of the 2012 orders. The appellant's challenges to the trial judge's decision were without merit. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal, fixed at $18,515.10.
The legal issues before the court centred on whether the trial judge had correctly applied the rule in Rice and Asplund and whether the child's views were appropriately considered under s 60CC of the Family Law Act 1975 (Cth). The appellant contended that the trial judge had failed to adequately address the rule, which would have warranted its consideration as a preliminary issue. However, the court noted that the rule was addressed after a family report was completed and at the conclusion of the trial. The court found that the trial judge had properly exercised her discretion in assigning weight to the child's views, taking into account the child's intelligence, maturity, and the profound changes the 2012 orders would entail for the child. The court also found that the trial judge's reasons demonstrated consideration of various factors beyond the parties' disagreement.
The court dismissed the appeal, holding that the trial judge had not erred in her application of the rule in Rice and Asplund. The reasons provided by the trial judge demonstrated a thorough consideration of the child's views and other relevant factors. The court concluded that there was ample evidence to support reconsideration of the 2012 orders. The appellant's challenges to the trial judge's decision were without merit. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal, fixed at $18,515.10.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The appellant pay the respondent’s costs of and incidental to the appeal proceedings in the fixed sum of $18,515.10 within thirty (30) days.
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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