FAMILY LAW – COMPETENCE OF APPEAL – where the father contended the appeal was out of time and thus incompetent – where ex tempore reasons for judgment were given at trial – where orders were made after the reasons for judgement were given – where the mother’s notice of appeal was filed within 28 days of the orders – where s 94AAA(5) provides the court jurisdiction in an appeal from a “decree” of the Federal Circuit Court of Australia – where reasons for judgment do not constitute a decree – where it was held the formal orders constitute a decree – where the mother’s notice of appeal was filed in time.
FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the mother was the primary carer – where the issue on appeal was whether the trial judge was correct to make a coercive order as to where the mother was to live – where the children lived with the mother and spent time with the father each alternate weekend – where the mother had at separation relocated to receive emotional support and move away from her previous drug habits – where the mother would travel with the children to allow for the father to spend time with the children – where the trial judge found the travel was not safe for the children – where the trial judge assumed the mother would receive the same emotional support should she be ordered to relocate back to the father’s town – where it was held it was not open to the trial judge to make these findings – where the Court’s power to make a coercive order should be exercised only in rare and extreme circumstances, namely for a parent to perform their role as primary carer – where the trial judge was required to consider alternative options available before making a coercive order – where it was held the trial judge erred in failing to consider alternatives to a coercive order – where the trial judge erred in considering s 60CC factors by failing to consider the risk factors for the children should the mother be required to move back to the father’s town – where the mother argued at trial she would likely relapse and abuse drugs if ordered to move back to the father’s town – where the trial judge further erred in applying the factors under s 65DAA – where it was found that the trial judge acted upon wrong principles and failed to take into account relevant material considerations and facts – where this failure led the trial judge to make a coercive order – where the appeal was allowed – where the parenting proceedings were remitted for rehearing – where the coercive orders were set aside.
[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
Oswald & Karrington [2016] FamCAFC 152
Case
[2016] FamCAFC 152
Decision Date
CaseChat Overview and Summary
In the matter of Oswald & Karrington, the father contested the competency of the appeal on the basis that the mother's notice of appeal was filed outside the statutory time limit. The case concerned a dispute over parenting orders, particularly the relocation of the mother, who was the primary carer of the children. The mother appealed against coercive orders made by the trial judge, arguing they were not justified and should be set aside. The Federal Circuit Court of Australia was called upon to determine whether the appeal was within the time limit and, if so, whether the coercive orders made by the trial judge were appropriate.
The court needed to decide whether the appeal was time-barred and, if not, whether the trial judge correctly exercised the court's power to make coercive orders. The court had to determine whether the reasons for judgment and the orders made constituted a "decree" for the purpose of the appeal, and if the mother's appeal was lodged within the required timeframe. Additionally, the court had to assess whether the trial judge made the coercive orders in accordance with the law, particularly whether the judge considered alternative options and relevant risk factors for the children.
The court held that the formal orders made by the trial judge constituted a "decree" and that the mother's notice of appeal was filed within the statutory time limit. The court found that the trial judge erred in making the coercive orders without considering alternative options and in failing to properly assess the risk factors for the children. The coercive orders were set aside and the matter was remitted for rehearing by a different judge. The court also issued costs certificates for both parties under the Federal Proceedings (Costs) Act 1981 (Cth), allowing for potential reimbursement of costs incurred in the appeal and rehearing.
The appeal was allowed, the orders made by Judge Young on 24 May 2016 were set aside, and the matter was remitted for rehearing by another judge. The court granted costs certificates to both parties, allowing for potential reimbursement of costs incurred in the appeal and the rehearing.
Orders
Orders of the court
1.
The appeal against the orders of Judge Young made on 24 May 2016 is allowed and those orders are set aside.
2.
The matter be remitted for hearing by a judge in the Federal Circuit Court of Australia other than Judge Young.
3.
There is no order as to costs as between the parties.
4.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
5.
The Court grants to the respondent father 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 father in respect of the costs incurred by the respondent father in relation to the appeal.
6.
The Court grants to each of the parties a costs certificate pursuant to 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 in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.