ORPHEUS & ORPHEUS - [2014] FamCAFC 70

FAMILY COURT OF AUSTRALIA

ORPHEUS & ORPHEUS

[2014] FamCAFC 70

FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders permitting the mother to relocate the children’s residence from Geelong Suburb L to Melbourne and providing that the father see the children on part of six days each fortnight during school terms – Where the trial judge did not expressly discuss the matters in ss 65DAA (1)(a) and (b) of the Family Law Act 1975 (Cth) – Where the Full Court was satisfied that the trial judge had “considered” an equal time option given the findings made in relation to the matters in s 65DAA(2) – Where the trial judge did not discuss the competing proposals for the day to day care of the children – Where the trial judge clearly anticipated that the parents would be able to make the proper arrangements for the care of the children – Where the trial judge made orders different to those sought by each party – Where the Full Court did not consider these deficiencies warrant appellate intervention – Where the trial judge made findings permitting relocation based on the mother’s mental health and consequential detrimental effect on the children – Where these findings were open to the trial judge on the evidence – Where no appealable error demonstrated – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the complaints agitated by the appellant father are not entirely without merit – Where it is appropriate that each party bear their own costs.

Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 65DAA

AMS v AIF; AIF v AMS (1999) 199 CLR 160
McCall & Clark (2009) FLC 93-405
MRR v GR(2010) 240 CLR 461
SCVG & KLD [2014] FamCAFC 42
U v U (2002) 211 CLR 238
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Mr Orpheus

RESPONDENT:

Ms Orpheus

APPEAL NUMBER:	SOA	44	of	2013
FILE NUMBER:	MLC	9641	of	2011

DATE DELIVERED:

30 April 2014

PLACE DELIVERED:

Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Strickland & Ainslie-Wallace JJ

HEARING DATE:

7 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mort

SOLICITOR FOR THE APPLICANT:

Perisic Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Teicher

SOLICITOR FOR THE RESPONDENT:

Nicolaides & Associates

Order

The appeal be dismissed.
There be no order as to the costs of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orpheus & Orpheus has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

APPEAL NUMBER: SOA 44 of 2013
FILE NUMBER: MLC 9641 of 2011

Mr Orpheus

Appellant

And

Ms Orpheus

Respondent

REASONS FOR JUDGMENT

Introduction

On 7 June 2013, Judge Connolly made an order permitting Ms Orpheus (“the mother”) to move from Geelong Suburb L to Melbourne with the two children of her marriage to Mr Orpheus (“the father”).

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: ORPHEUS & ORPHEUS [2014] FamCAFC 70
Case: [2014] FamCAFC 70
Decision Date

CaseChat Overview and Summary

In this case, the Full Court of the Family Court of Australia dismissed an appeal against the orders of Judge Connolly, who had made an order permitting Ms Orpheus to move from Geelong Suburb L to Melbourne with the two children of her marriage to Mr Orpheus. The father had appealed the orders, which allowed him to see the children on six days each fortnight during school terms and half the school holidays. The Full Court found that the trial judge had considered the statutory requirements and the evidence, and that there were no errors warranting appellate intervention. The Full Court also found that both parties should bear their own costs. The key issues in the case were whether the trial judge had properly considered the statutory requirements and the evidence, and whether the orders were in the best interests of the children. The Full Court found that the trial judge had properly considered the statutory requirements and the evidence, and that the orders were in the best interests of the children. The Full Court also found that the trial judge's reasons were sufficient, despite some deficiencies, and that the orders were reasonably practicable. The Full Court dismissed the appeal and ordered that each party bear their own costs.

Orders