MALONEY & MALONEY - [2012] FamCAFC 16

FAMILY COURT OF AUSTRALIA

MALONEY & MALONEY

[2012] FamCAFC 16

FAMILY LAW – APPEAL – CHILDREN – where the appellant mother alleges that the Federal Magistrate failed to provide adequate reasons – where the law in this regard is well settled – where the quest of the Court is to be able to discern the path by which the result has been reached – where it is not for the Court or the parties to speculate – where there is a distinct lack of clarity in parts of the reasons for judgment – where conclusions are formed without an indication of how the conclusion is arrived at – where the evidence relied upon in reaching a conclusion is not identified– where it is not clear how the Federal Magistrate treated the evidence of the family consultant where it supported the mother’s case – where there is merit in a number of the grounds of appeal – where the orders identified to be set aside are to be stayed pending further order of a Federal Magistrate – appeal allowed – matter remitted to the Federal Magistrates Court for re-hearing before a different Federal Magistrate.

FAMILY LAW – APPEAL – CHILDREN – COSTS – where both counsel sought that there be no order for costs and that costs certificates issue – where the appeal has been allowed on a question of law – costs certificates to issue for the appeal and for the re-hearing.

Family Law Act 1975 (Cth) s 60CC(3), s 94AAA(6)

Bennett and Bennett (1991) FLC 92-191
Cales & Cales [2010] FamCAFC 237
Churchill & Winston [2007] FamCA 723
House v The King (1936) 55 CLR 499
McCall & Clark (2009) FLC 93-405
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Ms Maloney

RESPONDENT:

Mr Maloney

FILE NUMBER:

LNC

314

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

9 February 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

18 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 January 2011

LOWER COURT MNC:

[2011] FMCAfam 51

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dixon SC

SOLICITOR FOR THE APPELLANT:

Coulter Roache

COUNSEL FOR THE RESPONDENT:

Mr Welch

SOLICITOR FOR THE RESPONDENT:

Philip Welch

Orders

The appeal be allowed.
Subject to paragraph 3 hereof, Orders 1, 2, 3, 4, 5 and 10 made by Federal Magistrate Roberts be set aside.
The setting aside of the said Orders be stayed pending further order of a Federal Magistrate.
The proceedings be remitted to the Federal Magistrates Court for re-hearing before a Federal Magistrate other than Federal Magistrate Roberts.
There be no order as to costs.
The Court grants to the Appellant Mother 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 Mother in respect…

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 MALONEY & MALONEY

Details

AGLC: MALONEY & MALONEY [2012] FamCAFC 16
Case: [2012] FamCAFC 16
Decision Date: 9 February 2012

CaseChat Overview and Summary

In this case, the appellant mother contested the decisions made by the Federal Magistrate regarding child custody and care arrangements, asserting that the magistrate had failed to provide adequate reasons for the orders issued. The dispute was heard and ultimately decided by the Family Court of Australia. The mother argued that the magistrate's reasons for judgment were lacking in clarity and failed to sufficiently address the evidence presented, particularly that which supported her case. The legal issues before the court involved whether the magistrate's reasoning was sufficient and whether the orders made were appropriate in light of the evidence and applicable law.

The court found that the magistrate's reasons for judgment did indeed lack clarity in several respects. There were instances where conclusions were drawn without a clear explanation of how they were reached and where the evidence relied upon was not identified. Moreover, it was unclear how the magistrate treated the evidence of the family consultant, which had supported the mother’s case. Given these deficiencies, the court concluded that several of the grounds of appeal had merit. Consequently, the appeal was allowed, and the orders made by the Federal Magistrate were set aside, pending further order from another magistrate. The matter was remitted to the Federal Magistrates Court for re-hearing before a different magistrate.

The court also addressed the issue of costs. Both parties had requested that no order for costs be made and that costs certificates be issued. Given that the appeal had been allowed on a question of law, the court decided that costs certificates should issue for both the appeal and the re-hearing. Additionally, the court granted the appellant mother and the respondent father individual costs certificates for the appeal and another joint certificate for the new trial, under the Federal Proceedings (Costs) Act 1981 (Cth). This was done to ensure that the costs incurred by each party in relation to the appeal and the new trial could be appropriately addressed.

Orders

Orders of the court

The appeal be allowed.

Subject to paragraph 3 hereof, Orders 1, 2, 3, 4, 5 and 10 made by Federal Magistrate Roberts be set aside.

The setting aside of the said Orders be stayed pending further order of a Federal Magistrate.

The proceedings be remitted to the Federal Magistrates Court for re-hearing before a Federal Magistrate other than Federal Magistrate Roberts.

There be no order as to costs.

The Court grants to the Appellant Mother 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 Mother in respect of the costs incurred by the Appellant Mother in relation to the appeal.

The Court grants to the Respondent Father 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 Father in respect of the costs incurred by the Respondent Father in relation to the appeal.

The Court grants to each party a costs certificate pursuant to the provisions of

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 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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