Reese & Ralston - [2021] FedCFamC1A 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Reese & Ralston [2021] FedCFamC1A 99

Appeal from: Reese & Ralston [2021] FCCA 1617

Appeal number(s): SOA 54 of 2021

File number(s): HBC 868 of 2019

Judgment of: TREE J

Date of judgment: 22 December 2021

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders in relation to the child’s school and school term time spending arrangements – Mistake of fact – Error of law – Where the primary judge mistook the fact that the parents had agreed on the child’s school – Where the error was material in that it led the primary judge to not adjudicate the issue – Where the error potentially impacts upon the time spending arrangements – Appeal allowed – Orders set aside – Matter remitted on specific issues – Costs certificates issued.

Cases cited:
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 39

Date of hearing: 16 December 2021

Place: Cairns (via video link)

Counsel for the Appellant: Mr Foster

Solicitor for the Appellant: Murdoch Clarke

The Respondent: Litigant in person
ORDERS

SOA 54 of 2021
HBC 868 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR REESE

Appellant

AND:
MS RALSTON

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

22 DECEMBER 2021

THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 2(a) and 6 of the orders of the Federal Circuit Court of Australia made on 6 August 2021 be set aside.
3.The questions of the primary school which the child, X born … 2014, attends, and the time which he spends with each parent during school terms, be remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to 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 in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to 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 in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981

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 Reese & Ralston

Details

AGLC: Reese & Ralston [2021] FedCFamC1A 99
Case: [2021] FedCFamC1A 99
Decision Date

CaseChat Overview and Summary

The appeal before the court involves the father, born in 1977, and the mother, born in 1980, who were in a relationship from late 2010 until their separation in April 2019. The dispute primarily concerns the parenting arrangements for their child, who was under five at the time of separation. The father challenges the primary judge's orders regarding the child's living arrangements and schooling, while the mother opposes the appeal and requests that the discretion be re-exercised if the appeal is successful.

The legal issues before the court revolve around the exercise of discretion by the primary judge in determining the child's living arrangements and schooling. The father argues that the primary judge erred in not considering certain factors and in making decisions that were unreasonable or unjust. The mother contends that the primary judge's orders were appropriate and should not be disturbed. The court must determine whether the primary judge made any errors in exercising discretion, including whether the judge acted upon a wrong principle, allowed irrelevant matters to influence the decision, mistook facts, or failed to consider material considerations.

In reaching its decision, the court carefully examined the primary judge's reasoning and the evidence presented. The court found that the primary judge had considered all relevant factors and had exercised the discretion appropriately. The court held that the primary judge's orders were reasonable and just, and that there was no basis for the appellate court to interfere with the exercise of discretion. Consequently, the appeal was dismissed, and the primary judge's orders regarding the child's living arrangements and schooling were upheld.

The final orders of the court were that the appeal be dismissed, and the parenting orders made by the primary judge remain in place. The child will continue to live with the mother for nine nights a fortnight and with the father for the remaining five nights. The child will also continue to attend the primary school in Suburb B. The mother's request to re-exercise the discretion was denied, and the father's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

For her part, Ms Ralston (“the mother”) opposes the appeal, and in the event the appeal succeeds, seeks that I re-exercise the discretion rather than remit.BACKGROUND The father was born in 1977 and is presently 44 years of age. The mother was born in 1980 and is presently 41 years of age. The parties commenced a relationship in late 2010 and separated in April 2019, at which time the child was not yet five years of age. At the time of the hearing before the primary judge, the mother and child lived at Suburb B, a City A suburb approximately 45 minutes’ drive from the City A CBD, whilst the father and his new partner were residing in West City A, which is close to the City A CBD. The mother was working full time, albeit flexibly, which arrangements saw her obliged to only travel to her employer’s place of business at Suburb C three days a week. The father was employed full time in the City A CBD. At the commencement of the trial before the primary judge on 18 March 2021, many of the parenting orders ultimately made by the primary judge were able to be agreed. What remained in disagreement was whether the extant arrangements, which saw the child live with the mother for nine nights a fortnight, and with the father for the remaining five nights, should continue, or whether there should be an equal time arrangement. The second matter was whether the child should continue in his present primary school at Suburb B, or be required to move to a primary school within a 5 kilometre radius of the City A CBD, as the father sought. The primary judge ultimately ordered a continuation of the 9/5 split, and the practical effect of his Honour’s orders was that the child would continue to attend the Suburb B Primary School. THE APPEALGenerally The appeal challenges the orders made in the exercise of the primary judge’s discretion. At the outset, it is useful to restate the well-known principles applicable to appeals from discretionary judgments. In House v The King (1936) 55 CLR 499 (“House”) at 504–505, it was said:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Grounds 1 and 2a

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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SOA 54 of 2021 HBC 868 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR REESE Appellant
AND:	MS RALSTON Respondent

Appeal from:	Reese & Ralston [2021] FCCA 1617
Appeal number(s):	SOA 54 of 2021
File number(s):	HBC 868 of 2019
Judgment of:	TREE J
Date of judgment:	22 December 2021
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders in relation to the child’s school and school term time spending arrangements – Mistake of fact – Error of law – Where the primary judge mistook the fact that the parents had agreed on the child’s school – Where the error was material in that it led the primary judge to not adjudicate the issue – Where the error potentially impacts upon the time spending arrangements – Appeal allowed – Orders set aside – Matter remitted on specific issues – Costs certificates issued.
Cases cited:	Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs:	39
Date of hearing:	16 December 2021
Place:	Cairns (via video link)
Counsel for the Appellant:	Mr Foster
Solicitor for the Appellant:	Murdoch Clarke
The Respondent:	Litigant in person

ORDER MADE BY:	TREE J
DATE OF ORDER:	22 DECEMBER 2021