FAMILY LAW – APPEAL – CHILDREN – PRACTICE AND PROCEDURE – where the appellant father sought at trial to vary final parenting orders – where the father challenges on appeal the trial Judge’s application of the “rule in Rice v Asplund” – where the father contends the trial Judge erroneously confined herself in the manner in which she dealt with the father’s application for a variation of parenting orders – consideration of the “rule in Rice v Asplund” – whether the trial Judge erred – where nothing to indicate the trial Judge’s discretion miscarried – no error demonstrated – father ordered to pay the mother’s costs of the appeal.
The appellant father pay the respondent mother’s costs of the appeal as agreed in writing or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Poisat & Poisat has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY
Appeal Number: EA 161 of 2012 File Number: SYC 768 of 2012
Mr Poisat
Appellant
And
Ms Poisat
Respondent
REASONS FOR JUDGMENT
The father of two children appeals orders made by Rees J on 16 November 2012 dismissing his application to vary parenting orders made by consent on 10 September 2010.
The appeal concerns her Honour’s application of “the rule in Rice and Asplund” and, more specifically, the nature of the proceedings that took place before her Honour.
The Grounds of Appeal
The Notice of Appeal was drafted at a time when the father represented himself. The written outline of argument, which was prepared by legal practitioners on the…
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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AGLC
Poisat & Poisat [2014] FamCAFC 128
Case
[2014] FamCAFC 128
Decision Date
CaseChat Overview and Summary
In the case of Poisat & Poisat, the father appealed a decision dismissing his application to vary a prior parenting order. The Family Court of Australia was tasked with determining whether the dismissal of this application constituted a parenting order under the Family Law Act and whether the best interests of the child were considered in the dismissal. The primary legal issue was whether the dismissal of the father’s application to vary a parenting order should be considered a parenting order within the meaning of the Act. Additionally, the court needed to ascertain whether the best interests of the child were the paramount consideration in deciding to dismiss the application.
The court held that an order dismissing an application to vary a parenting order does not fit the definition of a parenting order as set out in the Act, but the paramountcy principle still applies. The court noted that while the dismissal of an application may not be a parenting order, the decision to dismiss must still consider the child's best interests, as mandated by the Act. The court emphasised that the decision to dismiss the father's application was made with the child's best interests as the paramount consideration, even if the dismissal itself does not constitute a parenting order.
Given the unsuccessful nature of the appeal, the court found that there were circumstances justifying a departure from the usual presumption of costs under the Family Law Act. Consequently, the father was ordered to pay the mother's costs of the appeal as agreed or assessed.
ORDERS:
1. The appeal be dismissed.
2. The appellant father pay the respondent mother's costs of the appeal as agreed in writing or, failing agreement, as assessed.
Orders
Orders of the court
1.The Appeal be dismissed.
2.The appellant father pay the respondent mother’s costs of the appeal as agreed in writing or, failing agreement, as assessed.
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
Some suggestions made by counsel for the father seemed to imply that the order dismissing the father’s application was a “parenting order” within the meaning of s 64B(1) of the Act. That submission, too, can be answered, in our view, by reference to what was said by Warnick J in SPS:77.An order simply dismissing an application to vary or discharge an earlier parenting order may not neatly fit within the definition of “Parenting Order” as set out in s 64B, although a variation or discharge of the earlier order would. However, the paramountcy principle still applies to the decision to dismiss an application to vary, because of the terms of s 60CA which are:Child's best interests paramount consideration in making a parenting order In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 78.Authority supports this view. Speaking of the rule in Rice and Asplund, Nygh J with whom Barblett and Fogarty JJ agreed, said in In the Marriage of Newling and Mole (1987) FLC 91-856 at 76,467 [quoted earlier in these reasons]…(Emphasis in original). The application by the father is an application for a parenting order and, thus, the Act mandates that such matters as are relevant pursuant to s 60CC must be taken into account in determining the relevant child’s best interests. Her Honour did so. However, we have considerable doubts as to whether the order dismissing the father’s application is a “parenting order” as defined in the Act. The (wide) definition in s 64B does not include dismissal of an application. Seen in the context of Part VII as a whole, the omission seems plainly intentional. For example, if an order dismissing an application was a “parenting order” the court would be obliged to apply the presumption in s 61DA and to consider the matters in s 65DAA in circumstances where the court was determining that no parenting order should be made. The appeal must be dismissed. Counsel for the mother submitted that, in the event the appeal was unsuccessful, the father ought pay her costs of the appeal and counsel for the father conceded, properly as it seems to us, that the father could not oppose an order for costs in those circumstances. The appeal has been wholly unsuccessful. In our view, there are circumstances justifying a departure from the presumption in s 117(1) of the Act. The husband should pay the wife’s costs of and incidental to the appeal as agreed or, failing agreement, as assessed.