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Oakley & Cooper

Oakley & Cooper

Case [2009] FamCAFC 133 30 July 2009

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FAMILY COURT OF AUSTRALIA

OAKLEY & COOPER

[2009] FamCAFC 133

FAMILY LAW - APPEAL – PARENTING ORDERS – Whether the Federal magistrate erred by giving insufficient weight to issues of family violence – Where there was no challenge to the adequacy of the Federal Magistrate’s reasons – Where there was no notice asserting abuse or family violence under s 60K of the Family Law Act 1975 (Cth) – Where the issue of family violence was significant – Where allegations of family violence established – Full Court referred to, and discussed, the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged – Where Family Report or expert evidence indicates that therapeutic intervention is appropriate, consideration to be given to making an appropriate order – Where the Federal Magistrate found both parties had engaged in verbal and physical abuse in the presence of the children – Where the Federal Magistrate gave weight to each party’s inappropriate conduct – No appealable error – Whether the Federal Magistrate gave insufficient weight to the influence of the mother’s former partner on the children – Where the Federal Magistrate considered the concerns of the father – No appealable error – Whether the Federal Magistrate erred in the weight given to the importance of maintaining the children’s relationships with half-siblings – Where the Federal Magistrate found the siblings’ relationship was important to the children – Where the importance of sibling relationships is well recognised – No error – Whether the Federal Magistrate erred in the weight given to the Family Report – No merit to ground – Whether the Federal Magistrate erred in finding that the mother would not breach orders in the future – Ground not established.

FAMILY LAW - APPEAL – Appeal dismissed.

FAMILY LAW - COSTS – No order as to costs.

Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC (2), s 60CC(3), s 60K, s 65DAA, s 69ZN(5), s 69ZQ(1), s 69ZX(1), Division 12A
Federal Magistrates Act 1999 (Cth) – s 3

Bennett & Bennett (1991) FLC 92–191
CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Goode & Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716

Family Court of Australia, Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged, March 2009.

APPELLANT:

Mr Oakley

RESPONDENT:	Ms Cooper
INDEPENDENT CHILDREN’S LAWYER:	Legal Aid Queensland

FILE NUMBER:

BRM

5744

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

30 July 2009

PLACE DELIVERED:

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick, Boland & Murphy JJ

HEARING DATE:

17 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

21 December 2007

LOWER COURT MNC:

[2007] FMCAfam 1137

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Oakley appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Smith

SOLICITOR FOR THE RESPONDENT:

Chris Wlodarczyk & Co Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

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 Oakley & Cooper

Details

AGLC: Oakley & Cooper [2009] FamCAFC 133
Case: [2009] FamCAFC 133
Decision Date: 30 July 2009

CaseChat Overview and Summary

The case of Oakley & Cooper involved an appeal by the father against a parenting order made by the Federal Circuit Court. The central issue was whether the Federal Magistrate erred in the assessment and weight given to various factors, including family violence, the influence of the mother's former partner, the importance of the children's relationships with their half-siblings, and the findings about the mother's future compliance with orders. The Full Court examined whether these findings were appropriate and whether there were any errors that warranted an appeal.

The legal issues before the court included whether the Federal Magistrate had erred in giving insufficient weight to the issues of family violence, the influence of the mother's former partner on the children, the importance of maintaining relationships with half-siblings, and the weight given to the Family Report. The court also assessed whether the Federal Magistrate's findings about the mother's future compliance with orders were justified. The Full Court carefully reviewed the magistrate's reasoning and the evidence presented, including the Best Practice Principles for use in Parenting Disputes when Family Violence or Abuse is Alleged.

The Full Court found that the Federal Magistrate had appropriately considered all relevant factors, including the issues of family violence and the influence of the mother's former partner. The court concluded that there was no appealable error in the magistrate's assessment of these factors or in the weight given to the importance of the children's relationships with their half-siblings. Furthermore, the court determined that there was no error in the Federal Magistrate's reliance on the Family Report or in the finding that the mother would not breach orders in the future. Consequently, the appeal was dismissed, and no order was made as to costs.

The Full Court's decision affirmed the Federal Magistrate's findings and orders, reflecting a comprehensive review of the evidence and applicable legal principles. The appeal was dismissed, and no order was made as to costs, concluding the matter without further legal recourse for the appellant.

Orders

Orders of the court

That the appeal be dismissed.

No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Oakley & Cooper [2009] FamCAFC 133

Most Recent Citation

Aitchison & Elkers [2023] FedCFamC2F 1476

Cases citing this decision · 9 of 9 shown

Aitchison & Elkers
[2023] FedCFamC2F 1476

…a Ltd (2011) 243 CLR 361; [2011] HCA 11 Muldoon & Carlyle [2012] FamCAFC 135; (2012] FLC 93 – 513 Oakley & Cooper [2009] FamCAFC 133 Rader & Haines [2022] FedCFamC1A 156 Rice v Asplund ([1978] FamCA 87; (1979) FLC 90 – 725; 6 FamLR 570 Division: Division 2 Family Law Number of paragraphs: 643 Date of last submission/…
MALONE & MALONE
[2013] FCCA 1243

…Cases cited: B & B (Access) (1986) FLC 91-758 Oakley & Cooper [2009] FamCAFC 133 Re K (1994) 17 Fam LR 537; FLC 92-461…
Vaughn and Douglas
[2011] FMCAfam 773 Para 41

…93) 116 FLR 87, Jaeger (1994) FLC 92-492, Blanch & Crawford (1999) FLC 92-837, A and A (1998) FLC 92-800, M & M (2000) FLC 93-006 and Oakley & Cooper [2009] FamCAFC 133.…
Patino and Griego
[2010] FMCAfam 1422 Para 8

…The definitions of violence in the community are far broader than under the Act. Full Court decisions such as Oakley & Cooper [2009] FamCAFC 133 reflect upon the fact that the limited definition of violence in section 4 does not preclude the court from looking at a broader scope of violence and behaviour, particularl…
Vogel and Abell
[2010] FMCAfam 1189 Para 14

…with appeals, not only from federal magistrates but also appeals from judges of the Family Court. Most particularly, the case of Oakley & Cooper [2009] FamCAFC 133 reflected upon a discussion of the Family Court’s best practice principles where family violence or abuse is alleged which practice principles, in themse…
Sinistra and Sinistra
[2010] FMCAfam 272 Para 19

…The Full Court in Oakley & Cooper [2009] FamCAFC 133, a matter in which it had been found that the parties had engaged in verbal and physical abuse, identified the importance of the Court considering conditions which should be complied with by a party in whose favour it is proposed that an order be made. The Full Cou…
Akston & Boyle
[2010] FamCAFC 56 Para 1

…around the question of impaired, or potentially impaired parental capacity because of drug abuse, the discussion of the Full Court in Oakley & Cooper [2009] FamCAFC 133, although directed to the issue of family violence, has relevance. In Oakley , at paragraph 68, the Full Court said: We also think it important to re…
Biss and Biss
[2009] FamCA 1234

…McCall & Clark [2009] FamCAFC 92 MRR and GR [2009] HCA Trans 316 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Oakley & Cooper [2009] FamCAFC 133 Regent & Driscoll [2009] FamCA 14 Reifek v McElroy (1965) 112 CLR 517 R & R: Children’s wishes (2000) FLC 93-000 R v R (Children’s wishes) (2002) FLC…
Amador & Amador
[2009] FamCAFC 196 Para 16

…Finally, in relation to this ground we note what fell from the Full Court in the decision of Oakley & Cooper [2009] FamCAFC 133 at 68: We also think it important to record that while s 3 of the Federal Magistrates Act 1999 (Cth) includes in the objects of that Act that the Court operate as informally as possible in t…

View all 9 citing cases →

Cases cited in this decision · 3 of 3 shown

CDJ v VAJ
[1998] HCA 67 Para 2

…Kirby J in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 said at 230 – 231 (footnotes omitted): A number of general propositions may be stated: 1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the…
Gronow v Gronow
[1979] HCA 63 Para 1

…. It is appropriate that we now set out those principles, particularly as they relate to cases involving decisions about children. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J at 519 explained the limitations on appellate inference as follows: The constant emphasis of the cases is that before re…
[2007] FMCAFAM 1137
[2007] FMCAFAM 1137

…[2007] FMCAfam 1137…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 8)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 2)