FAMILY LAW – APPEAL – From a Federal Magistrate – CHILDREN – Best interests of the child – Where the mother sought to appeal orders restraining her from leaving a certain district in New South Wales which were effected to maintain proximity between the child and the respondent – Where the respondent has a close and loving relationship with the child but is not the biological father – Where the biological father was generally supportive of the mother’s case at trial to relocate to another district in New South Wales – Whether the Federal Magistrate failed to properly consider each of the competing proposals of the parties in relation to where the child should live – Whether the Federal Magistrate erred in making findings unsupported on the evidence, particularly in relation to the views of the child and the evidence of the Family Consultant – Whether the Federal Magistrate erred in making orders which were asserted to impact negatively on the mother’s relationship with her new partner in the place she sought to relocate with the child (and the child’s relationship with that person) – Where an order for joint parental responsibility had been made as between the mother and the father – Effect of the order for parental responsibility considered in light of the decision of the High Court of Australia in MRR v GR (2010) 84 ALR 220. APPEAL DISMISSED – All 19 Grounds of Appeal dismissed – Consideration of the principles in relation to relocation matters – Consideration of the application of factors outlined in s 60CC of the Family Law Act 1975 (Cth) in relocation matters as they relate to persons who are not biologically related to a child – Where a substantial number of matters addressed in the Grounds of Appeal related to the weight given by the Federal Magistrate to certain factual and other matters
FAMILY LAW - COSTS – Costs of and incidental to the appeal to be paid by the appellant in accordance with Chapter 19 of the Family Law Rules 2004
Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 65DAA
[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.
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AGLC
Malcolm & Munro [2011] FamCAFC 16
Case
[2011] FamCAFC 16
Decision Date
CaseChat Overview and Summary
The appeal in Malcolm & Munro was brought by the mother, Ms Malcolm, against orders made by a Federal Magistrate concerning the residence of her child. The primary issue was the Federal Magistrate's decision to restrain Ms Malcolm from relocating with the child to a different district in New South Wales, which was intended to maintain the child's proximity to the respondent, a man with whom the child had a close and loving relationship but who was not the child's biological father. The biological father supported the mother's proposal to relocate.
The court was required to determine whether the Federal Magistrate had correctly considered the competing proposals of the parties regarding the child's residence, whether the Magistrate had made findings unsupported by the evidence, and whether the orders made had an undue negative impact on the mother's relationship with her new partner and the child's relationship with that person. The court also needed to consider the effect of the order for joint parental responsibility between the mother and the father in light of the High Court's decision in MRR v GR.
The court found that the Federal Magistrate had properly considered the factors outlined in section 60CC of the Family Law Act 1975 (Cth), including the child's best interests, in making the decision. The court determined that the Magistrate did not err in the weight given to certain evidence, and that the orders made did not unduly impact the mother's and the child's relationship with the new partner. The appeal was dismissed on all grounds, and Ms Malcolm was ordered to pay the costs of the appeal in accordance with Chapter 19 of the Family Law Rules 2004.
Orders
Orders of the court
IT IS ORDERED THAT:
1.
The appeal EA 70 of 2009 is dismissed.
2.
The appellant, Ms Malcolm, pay the costs of and incidental to the appeal in accordance with Chapter 19 of the Family Law Rules 2004.