FAMILY COURT OF AUSTRALIA
| MAINS & REDDEN | [2011] FamCAFC 184 |
| FAMILY LAW – APPEAL – Appeal against decision of a Federal Magistrate to make orders for the immunisation of the child of the parties – Not established that the Federal Magistrate erred in findings of fact with respect to evidence of the mother or the expert medical evidence as to the potential risks to the child of immunisation – Not established that, on the evidence before him, it was not open to the Federal Magistrate to find as he did with respect to the magnitude of the risk of the child suffering a significant reaction to immunisation – Not established that the Federal Magistrate erred in the weight given to the evidence. FAMILY LAW – APPEAL – Point of law – Not established that the Federal Magistrate erred in not applying the Medical Procedure Application Rules. FAMILY LAW – APPEAL – Further evidence – Where the Federal Magistrate’s finding of an “extremely remote” risk to the child from immunisation was, if not pivotal to his ultimate conclusion, material to it – Whether the further expert medical evidence, if accepted, would render erroneous a finding that the risk was extremely remote – Further evidence admitted and appeal allowed. |
| Family Law Act 1975 (Cth) s 93A Family Law Rules 2004 (Cth) r 4.08; 4.09 |
| Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 Gronow v Gronow (1979) 144 CLR 513 Metwally (No 2) v University of Wollongong (1985) 60 ALR 68 Re Alex: Hormonal Treatment for Gender Identity Dysphoria (2004) FLC 93-175 |
| APPELLANT: | Ms Mains |
| RESPONDENT: | Mr Redden |
| FILE NUMBER: | PAC | 4550 | of | 2009 |
| APPEAL NUMBER: | EAA | 11 | of | 2011 |
| DATE DELIVERED: | 9 September 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 12 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 December 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1338 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hogg |
| SOLICITOR FOR THE APPELLANT: | Mackenzie & Vardanega |
| COUNSEL FOR THE RESPONDENT: | Ms Barnett |
| SOLICITOR FOR THE RESPONDENT: | G & D Lawyers |
Orders
That the application to adduce further evidence in the appeal filed on 8 August 2011 be allowed.
That the Notice of Appeal filed on 10 January 2011 against the orders F M Dunkley at Parramatta of 9 December 2010 be allowed and Order 10 be set aside.
That the matter be remitted for re-hearing before a Federal Magistrate other than FM Dunkley.
That an Independent Children’s Lawyer be appointed for the re-hearing before the Federal Magistrate.
That the Court grants to the Appellant Mother a…
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- Mains & Redden [2011] FamCAFC 184
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- [2011] FamCAFC 184
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CaseChat Overview and Summary
The court found that the Federal Magistrate did not err in his findings of fact or in the weight he gave to the evidence. The court also held that it was not necessary for the Federal Magistrate to apply the Medical Procedure Application Rules. However, the court determined that the Federal Magistrate’s finding that the risk of immunisation was extremely remote was material to his conclusion, and that the new expert medical evidence, if accepted, could render this finding erroneous. As a result, the court allowed the appeal, set aside the orders of the Federal Magistrate, and remitted the matter for re-hearing before a different Federal Magistrate.
The court further ordered that an Independent Children’s Lawyer be appointed for the re-hearing. The court also granted costs certificates to both parties, allowing for potential reimbursement of costs incurred during the appeal and the new trial. The mother was granted a certificate under section 9 of the Federal Proceedings (Costs) Act 1981, the father under section 6, and both parties under section 8, with the amount of reimbursement to be determined by the Attorney-General.
Orders
Orders of the court
1.
That the application to adduce further evidence in the appeal filed on 8 August 2011 be allowed.
2.
That the Notice of Appeal filed on 10 January 2011 against the orders F M Dunkley at Parramatta of 9 December 2010 be allowed and Order 10 be set aside.
3.
That the matter be remitted for re-hearing before a Federal Magistrate other than FM Dunkley.
4.
That an Independent Children’s Lawyer be appointed for the re-hearing before the Federal Magistrate.
5.
That the Court grants to the Appellant Mother a costs certificate pursuant to the provisions of s.9 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 Appellant Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.
6.
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 Father in respect of the costs incurred by the Respondent Father in relation to the appeal.
7.
That the Court grants to each party 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
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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