MEAD & MEAD - [2016] FamCAFC 177

FAMILY COURT OF AUSTRALIA

MEAD & MEAD

[2016] FamCAFC 177

FAMILY LAW – APPEAL – CHILDREN – RECOVERY ORDER – Where the mother appeals against interim parenting orders and refusal of recovery order – Where children cared for by the paternal grandmother while mother took short holiday – Where father assumed care of the children – Where judgment reserved – Where interim parenting orders made without hearing either party – Whether there was a denial of procedural fairness – Whether failure to properly engage with the mother’s case for the children to be returned – Risk assessment – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Application for recovery order listed for further hearing before the Full Court – Costs certificates for the appeal granted.

Family Law Act 1975 (Cth): s 67U
Federal Circuit Court of Australia Act 1999 (Cth): s 39(6)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6 and 9

Allesch v Maunz (2000) 203 CLR 172
Ghorbani & Saeed [2013] FamCAFC 167
Stead v State Government Insurance Commission (1986) 161 CLR 141
Tokely & Tokely (2014) FLC 93-601

APPELLANT:

Ms Mead

RESPONDENT:

Mr Mead

FILE NUMBER:

BRC

731

2012

APPEAL NUMBER:

125

2016

DATE DELIVERED:

5 September 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Hannam JJ

HEARING DATE:

29 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 August 2016

LOWER COURT MNC:

[2016] FCCA 2074

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr S. Gardiner

SOLICITOR FOR THE APPELLANT:

LGM Family Law

COUNSEL FOR THE RESPONDENT:

Mr T. Hodgson

SOLICITOR FOR THE RESPONDENT:

Ghobrial Legal

Orders

That the appeal be allowed.
That Orders 1, 3, 4 and 9 of the orders dated 3 August 2016 be set aside.
The appeal in relation to the recovery application be listed for further hearing before the Full Court of the Family Court of Australia in Sydney at 10.00 am on 8 September 2016.
That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.
That the Court grants to the appellant a costs certificate pursuant to the provisions of 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.
That the Court grants to the respondent 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 that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry…

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.

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Details

AGLC: MEAD & MEAD [2016] FamCAFC 177
Case: [2016] FamCAFC 177
Decision Date: 5 September 2016

CaseChat Overview and Summary

The mother, the appellant, appealed against the interim parenting orders and the refusal of a recovery order made by the Federal Circuit Court. The dispute involved the care of the children who were temporarily in the care of the paternal grandmother during the mother's short holiday. The father subsequently took over the care of the children. The Family Court of Australia was asked to determine whether there was a denial of procedural fairness, whether the court failed to properly engage with the mother's case for the children to be returned, and to assess the risk of harm to the children.

The court found that the mother was denied procedural fairness as the interim parenting orders were made without hearing either party. The court also found that the trial judge failed to properly engage with the mother's case for the children to be returned. The court considered that the mother had made out a case for the children to be returned to her care, and that there was a real possibility that the children would be harmed if they were not returned to her. The court further found that the risk assessment was not properly conducted.

The appeal was allowed, and the orders were set aside. The application for interim parenting orders was remitted to the Federal Circuit Court for rehearing before a different judge. The application for a recovery order was listed for further hearing before the Full Court of the Family Court of Australia. The Court granted costs certificates to both parties in respect of the costs incurred by them in relation to the appeal.

Orders

Orders of the court

That the appeal be allowed.

That Orders 1, 3, 4 and 9 of the orders dated 3 August 2016 be set aside.

The appeal in relation to the recovery application be listed for further hearing before the Full Court of the Family Court of Australia in Sydney at 10.00 am on 8 September 2016.

That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.

That the Court grants to the appellant 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 in respect of the costs incurred by her in relation to the appeal.

That the Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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