Oaks and Udall - [2011] FamCAFC 211

FAMILY COURT OF AUSTRALIA

OAKS & UDALL

[2011] FamCAFC 211

FAMILY LAW – APPEAL – Appeal against decision of a Federal Magistrate conceded without hearing – Court satisfied that appeal would have been successful if argued – Parties’ and Independent Children’s Lawyer's applications for costs certificates of appeal and new trial granted – Court accepted that parties not required to agitate appeal that would have been successful in order to enliven discretion to grant costs certificates

Family Law Act 1975 (Cth) s 17(2), Part VIII
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

SCVG & KLD [2011] HCATrans 285
SCVG & KLD [2011] FamCAFC 100

APPELLANT:

MR OAKS

RESPONDENT:

MS UDALL

INDEPENDENT CHILDREN’S LAWYER:

SARAH BEVAN FAMILY LAWYERS

FILE NUMBER:

PAC

134

2009

APPEAL NUMBER:

152

2010

DATE DELIVERED:	21 October 2011
PLACE DELIVERED:	SYDNEY

PLACE HEARD:

SYDNEY

JUDGMENT OF:

COLEMAN J

HEARING DATE:

21 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 October 2010

LOWER COURT MNC:

[2010] FMCAfam 1482

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC

SOLICITOR FOR THE APPELLANT:

Abigails Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Druitt

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER:

Sarah Bevan Family Lawyers

Orders

That the appeal be allowed.
That the orders made by Federal Magistrate Harman on 22 October 2010 be set aside.
That the orders setting aside Federal Magistrate Harman’s orders of 22 October 2010 be suspended for a period of 14 days to permit the mother to file and endeavour to have a listing allocated in relation to an application for urgent interim parenting orders.
That these proceedings be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Harman.
That the Court grants to the Appellant Husband 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 that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.
That the Court grants to the Respondent Wife 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 that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.
That the Court grants to each party 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 a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these…

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 Oaks and Udall

Details

AGLC: Oaks and Udall [2011] FamCAFC 211
Case: [2011] FamCAFC 211
Decision Date: 21 October 2011

CaseChat Overview and Summary

Oaks and Udall was a case brought before the Federal Circuit Court of Australia, with the appeal subsequently being heard by the Full Court. The case involved a dispute between a husband and wife regarding parenting arrangements for their children. The wife had appealed against the Federal Magistrate’s orders concerning the parenting arrangements, which were set aside, and the husband subsequently appealed the decision to set aside the orders. The Full Court was tasked with determining the validity of the Federal Magistrate's orders and the subsequent appeal by the husband.

The primary legal issues before the court were whether the Federal Magistrate had correctly exercised his discretion in making the orders, and whether the subsequent decision to set aside those orders was appropriate. The court was also required to consider the appropriate costs implications for both parties as a result of the appeal process.

In considering the appeal, the Full Court found that the Federal Magistrate had not correctly exercised his discretion in making the initial orders. Consequently, the court allowed the appeal, set aside the Federal Magistrate's orders, and remitted the matter for re-hearing before a different Federal Magistrate. The court also found that the wife had a legitimate need to seek urgent interim parenting orders, and thus granted a suspension period for this purpose. The court further addressed the costs associated with the appeal, issuing certificates under the Federal Proceedings (Costs) Act 1981 to ensure appropriate compensation for both parties.

Orders

Orders of the court

That the appeal be allowed.

That the orders made by Federal Magistrate Harman on 22 October 2010 be set aside.

That the orders setting aside Federal Magistrate Harman’s orders of 22 October 2010 be suspended for a period of 14 days to permit the mother to file and endeavour to have a listing allocated in relation to an application for urgent interim parenting orders.

That these proceedings be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Harman.

That the Court grants to the Appellant Husband 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 that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

That the Court grants to the Respondent Wife 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 that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

That the Court grants to each party 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 a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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.