MORDON & PAUL - [2014] FamCAFC 222

FAMILY COURT OF AUSTRALIA

MORDON & PAUL

[2014] FamCAFC 222

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – RELOCATION – where the trial judge made an order restraining the mother from moving the child’s place of residence any further away from the father’s residence than it was at the time of making the orders – where the trial judge made mistakes of fact as to whether the mother’s treating psychologist had given evidence and whether she was still treating the mother – where the psychologist was a critical witness in the mother’s case – where it was unclear what weight the trial judge gave to the mistaken views, and to what extent they influenced the findings made – where merit was found in these grounds of appeal – where it was otherwise not open for the trial judge to make the findings on the state of the evidence – where the trial judge failed to consider the competing proposals and the circumstances of the parties in addressing whether the orders were reasonably practicable pursuant to s 65DAA(2) and (5) of the Family Law Act 1975 (Cth) – Appeal allowed – Remitted for rehearing.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the appeal was successful on questions of law and no order for costs was made – Costs certificates granted to the parties for the appeal and rehearing.

Family Law Act 1975 (Cth) – ss 65DAA(1), (2), (5) and 117
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

De Winter & De Winter (1979) FLC 90-605
MRR v GR (2010) 240 CLR 461
Sayer v Radcliffe (2012) 48 Fam LR 298
Starr & Duggan [2009] FamCAFC 115

APPELLANT:

Ms Mordon

RESPONDENT:

Mr Paul

FILE NUMBER:

MLC

299

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

20 November 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, May & Strickland JJ

HEARING DATE:

4 March 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 September 2013

LOWER COURT MNC:

[2013] FCCA 856

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Smith

SOLICITOR FOR THE APPELLANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENT:

Mr Arnold

SOLICITOR FOR THE RESPONDENT:

Rochelle Belcher Lawyers

Orders

The appeal be allowed.
Paragraphs 4 to 7 of the Order made by Judge Small on 3 September 2013 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Small.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the 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…

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: MORDON & PAUL [2014] FamCAFC 222
Case: [2014] FamCAFC 222
Decision Date: 20 November 2014

CaseChat Overview and Summary

The case of Mordon & Paul involved an appeal against a decision made by Judge Small on 3 September 2013, concerning the relocation of a child's residence and the associated legal and factual findings. The trial judge had made an order that restricted the mother from moving the child's residence further away from the father's residence than it was at the time of the order. The appeal centred around whether the trial judge had made errors in fact and law, and if these errors influenced the final decision.

The court identified significant legal issues, primarily focusing on whether the trial judge had erred in his factual findings, particularly regarding the mother's treating psychologist's evidence and her ongoing treatment. The court found that the trial judge's mistakes of fact were critical, as the psychologist was a pivotal witness in the mother's case. Additionally, the court highlighted that the trial judge had not adequately considered the competing relocation proposals and the specific circumstances of the parties, which were essential under sections 65DAA(2) and (5) of the Family Law Act 1975 (Cth).

In light of these findings, the court concluded that the appeal had merit and allowed the appeal. It set aside specific paragraphs of the original order and remitted the matter for rehearing by a different judge. The court also granted costs certificates to both parties for the appeal and the rehearing, recognising the success on questions of law and the significant legal work involved. The appeal was successful on grounds of both fact and law, leading to the need for a rehearing to ensure all relevant factors were properly considered.

Orders

Orders of the court

The appeal be allowed.

Paragraphs 4 to 7 of the Order made by Judge Small on 3 September 2013 be set aside.

The matter be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Small.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the 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, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the 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 of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing.

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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