FAMILY LAW - APPEAL - CHILDREN - Trial judge's final orders for children to live with mother and spend supervised time with father - Whether trial judge gave proper consideration to the s 60CC matters relating to the best interests of the children – Obligation to “consider” the s 60CC matters – Meaning of “consider” in s 60CC(1)
FAMILY LAW - APPEAL – ADEQUACY OF REASONS - Whether the trial judge failed to give adequate reasons for accepting or rejecting the proposals of the father
FAMILY LAW - APPEAL – CHILDREN – Sexual abuse – Unacceptable risk – Trial judge’s observation that he would have grave concerns as to any court being satisfied on the evidence before him that sexual abuse of the children by the father took place – Trial judge’s finding there is not an unacceptable risk of father sexually abusing the children – Whether the trial judge erred in his application of the Russell and Close principle
FAMILY LAW - APPEAL – Rice & Asplund principle – Whether the trial judge failed to treat the matter as one where there had been no significant or substantial change since the consent orders were made
FAMILY LAW - APPEAL – INDEFINITE SUPERVISED ORDER
FAMILY LAW - APPEAL – CHILDREN – Appeal allowed and orders made for trial judge’s orders to be set aside and for a rehearing - Whether appropriate for Full Court to order that trial judge’s final orders set aside on appeal nonetheless should “continue” as interim orders until fresh trial – Order not made because Full Court not in position to consider the matters relevant to the exercise of the discretion relating to interim orders as set out in Goode & Goode
Family Law Act 1975 (Cth) ss 60B(1),(2), 60CA, 60CC,(e),(f),(g), 60CC(1), 60CC(2),(a),(b), 60CC(3),(a),(b),(c),(d),(e),(f),(g),(h),(i),(j),(k),(l),(m) (1), 65DAA(1)(a), (b)
[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
Moose & Moose [2008] FamCAFC 108
Case
[2008] FamCAFC 108
Decision Date
CaseChat Overview and Summary
In the appeal, the father sought to overturn the orders of the trial judge that the children should live with their mother and spend supervised time with him. The trial judge had made these orders following a parenting application by the father. The Full Court was required to determine whether the trial judge had given proper consideration to the matters set out in s 60CC of the Family Law Act 1975 (Cth) when making the final orders. The court was also required to consider whether the trial judge had given adequate reasons for accepting or rejecting the father’s proposals. The Full Court had to assess whether the trial judge had erred in his application of the Russell and Close principle and whether the trial judge had failed to treat the matter as one where there had been no significant or substantial change since the consent orders were made.
The Full Court held that the trial judge had not given proper consideration to the s 60CC matters. The Full Court held that the trial judge had failed to give adequate reasons for rejecting the father’s proposals. The Full Court held that the trial judge had erred in his application of the Russell and Close principle. The Full Court held that the trial judge had failed to treat the matter as one where there had been no significant or substantial change since the consent orders were made. The Full Court held that the indefinite supervised order was inappropriate.
The Full Court allowed the appeal and set aside the orders of the trial judge. The Full Court ordered that the matter be listed before a Judge at first instance as soon as possible to determine any application for interim parenting orders or other procedural directions necessary for a re-hearing of the parenting applications. The Full Court ordered that the costs incurred by the father, the mother, and the Independent Children’s Lawyer in relation to the appeal and the re-hearing be certified under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
That the appeal against the orders of the Honourable Justice Bell made 12 July 2007 be allowed.
2.
That subject to Order 3, the orders made 12 July 2007 be set aside.
3.
That setting aside of the orders made 12 July 2007 be stayed until the matter is listed before a Judge at first instance.
4.
That the matter be listed before a Judge in the Brisbane Registry as soon as possible to determine any application for interim parenting orders or other procedural directions necessary for a re-hearing of the parenting applications.
5.
That the Court grants to the appellant father a costs certificate pursuant to 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 him in relation to the appeal.
6.
The Court grants to the respondent mother 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 her in relation to the appeal.
7.
The Court grants to the Independent Children’s Lawyer 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.
8.
The Court grants to each of the parties and the Independent Children’s Lawyer 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 of the parties and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the re-hearing referred to in Order 4 of these orders.