Leandra & Randles - [2021] FedCFamC1A 51

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Leandra & Randles [2021] FedCFamC1A 51

Appeal from: [Randles & Leandra [2021] FCCA 1125

Appeal number(s): EAA 42 of 2021

File number(s): NCC 209 of 2021

Judgment of: AINSLIE-WALLACE J

Date of judgment: 5 November 2021

Catchwords:
FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders providing for the children to live with the father following the mother unilaterally relocating from Region C to Sydney with the children – Re-location – Best interests of the children – Where the children were to live with the mother in the event she decided to live in Region C– Where the appeal is allowed by consent on the basis of there being an error of law – Cost certificates granted.

FAMILY LAW – RE-DETERMINATION – INTERIM PARENTING ARRANGEMENTS – Where the parties seek that the Court re-determine the interim parenting arrangements – Where the father has not provided evidence of his employment commitments – Where the mother was the primary carer – Where the children are distressed from the loss of their mother’s primary care – Orders made for the children to be returned to the mother.

FAMILY LAW – COSTS – Where the mother seeks costs on the basis of offers being made – Where the mother rejected the offers made by the father – No order for costs.

Legislation: Family Law Act 1975 (Cth) s 117

Cases cited:
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346

SS & AH [2010] FamCAFC 13

Number of paragraphs: 98

Date of hearing: 26 October 2021

Place: Sydney

Counsel for the Appellant: Ms Tabbernor

Solicitor for the Appellant: Watts McCray

Counsel for the Respondent: Mr Hogg

Solicitor for the Respondent Joplin Lawyers
ORDERS

EAA 42 of 2021
NCC 209 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS LEANDRA

Appellant

AND:
MR RANDLES

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

5 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal against orders made by a judge of the Federal Circuit Court on 1 March 2021 is allowed and orders 1, 2, 10, 16 and 17 are set aside.
2.That there be no order for costs in relation to the appeal.
3.That the Court grants to the appellant mother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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.
4.That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under…

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 Leandra & Randles

Details

AGLC: Leandra & Randles [2021] FedCFamC1A 51
Case: [2021] FedCFamC1A 51
Decision Date

CaseChat Overview and Summary

The appeal in Leandra & Randles was brought by the mother, Ms Leandra, against interim parenting orders made by a judge of the Federal Circuit Court. The orders required the children to live with the father, Mr Randles, and spend time with the mother. The mother had appealed from those orders on the basis that the primary judge had failed to apply the well-known principles referrable to cases involving relocation and had taken into account irrelevant matters in coming to her decision. The appeal was allowed by consent on the basis of there being an error of law. The court then re-determined the interim parenting arrangements, finding that the children should be returned to their mother’s care. This decision was based on the evidence that the children were distressed from the loss of their mother’s primary care and that there was insufficient evidence on which the court could safely rely to accept the submission of the father’s counsel that he was the children’s primary carer and was attending to all of their daily needs. In relation to costs, the mother’s application for costs against the father at first on an indemnity basis, which was subsequently not pressed, but instead sought an order that the father pay the mother’s costs of the appeal and rehearing on a party/party basis was rejected. The court found that it would not be just to make an order for costs and that each party should pay his or her own costs. However, costs certificates were granted to both parties in relation to the appeal and the rehearing.

Orders