FAMILY LAW – APPEAL – STATUTORY CONSTRUCTION – Proper role of objects provisions in legislation considered – Where greater weight attached s 60B (objects and principles) than s 60CC – B & B: Family Law Reform Act 1995 (1997) FLC 92-755 considered as to the role and significance of s 60B – Where B & B:Family Law Reform Act 1995 provides that a judge is expected to identify and discuss the significance and weight of relevant s 60B factors and that where there are no countervailing factors, s 60B may be decisive – Where regard may be had to objects clauses to resolve uncertainty or ambiguity in the legislation but not to control clear statutory language or command a particular outcome of exercise of discretionary power – HELD – B & B:Family Law Reform Act 1995 overruled to the extent that it holds that s 60B does more than provide context, indicate the legislative purpose of Part VII and operate as an aid to construction of the Act.
FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – With whom a child lives – Where in a parenting case undertaken between a parent and another person interested in the welfare of the child, the fact of parenthood requires careful consideration – Part VII does not prescribe a hierarchy of applicants – Where s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex – Where the significance for a child of parenthood is to be weighed and considered along with other matters identified in s 60CC – Where child had lived with grandparent most of his life – Where application for a family report refused – Where no Independent Children’s Lawyer - HELD – Error established as to determination that it was in child’s best interests to live with his father – Orders in favour of father set aside and proceedings remitted for rehearing.
Family Law Act 1975 (Cth): ss 11F, 62G, 60CC, 60B, 60CA, 65AA, 61DA, 62G, 68L, 68LA, 60CE Family Law Amendment (Shared Parental Responsibility) Act (2006) (Cth) Family Law Reform Act 1995 (Cth)
Aldridge & Keaton (2009) FLC 93-421
B & B: Family Law Reform Act 1995 (1997) FLC 92-755 Brear and Corcoles-Alfaro (1997) FLC 92-768 Goode v Goode (2006) FLC 93-286
[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
Mauldera & Orbel [2014] FamCAFC 135
Case
[2014] FamCAFC 135
Decision Date
CaseChat Overview and Summary
This appeal concerns a challenge by Ms Maldera to parenting orders made by Judge Terry on 9 April 2014 in relation to her grandson, X (“the child”). X had lived with Ms Maldera, his maternal grandmother, since he was four years old. In 2007, orders were made that X live with his grandmother and that she have sole parental responsibility. The child’s father, Mr Orbel, filed an application in May 2013 that the child live with him. After considering the child’s views, and the parties’ respective capacities to meet the child’s needs, Judge Terry discharged the 2009 orders and ordered that the child lives with the father. Ms Maldera appeals against those orders.The primary judge correctly identified that the paramount consideration in determining whether to make a particular parenting order was the best interests of the child. However, the primary judge erred in applying the terms of s 60B of the Family Law Act 1975 (Cth) as a justification for the orders she made. Section 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC. But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.We also found that the primary judge erred in failing to make any proper investigation into the attachments and wishes of the child. The primary judge should have approached the evidence contained in the s 11F memorandum with caution. The memorandum itself says that it provides “preliminary expert advice” and that “any views expressed or recommendations are, of necessity, limited.” It being understood that to do so based on the limited interviews and investigations involved in the s 11F process, may be unsafe. Had a family report been ordered, the primary judge would have had the benefit of evidence in relation to the child’s maturity, sex, lifestyle and background more comprehensive than what she saw as evidence which enabled her to do no more than determine his age and that he is “apparently easy going and adaptable.” In our view, in failing to give attention to the family consultant’s evidence concerning the “very negative and inappropriate” changes in the child’s life, as well as both parties having raised serious concerns about the other party and household, not only did her Honour fail to consider the evidence concerning the child’s views in context but also to establish what were the “serious” concerns to which the family consultant referred.In light of these errors, the appeal was allowed, the orders made by Judge Terry were set aside, and the matter was remitted to the Federal Circuit Court for rehearing by a judge other than Judge Terry. The Full Court also granted costs certificates for the appeal and any rehearing.