FAMILY COURT OF AUSTRALIA
| REID & CLEMENTS AND ORS | [2015] FamCAFC 33 |
| FAMILY LAW – APPEAL – Where the Independent Children’s Lawyer appeals interim orders of the trial judge – Where a further hearing of the parenting proceedings is pending – Where the trial judge ordered a regime whereby the children spend one day on and one day off with each parent – Whether the trial judge failed to consider relevant sections of the Family Law Act 1975 (Cth) – Whether the trial judge failed to follow the principles relevant to the conduct of an interim parenting hearing – Where the appeal was conceded – Where the parties applied for costs certificates pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal succeeded on an error of law –– Where the trial judge failed to provide reasons – Appeal allowed – Costs certificates ordered for the appeal and re-hearing of the application. |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| B & B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 Goode & Goode (2006) FLC 93-286; (2007) 36 Fam LR 422; [2006] FamCA 1346 |
| APPELLANT: | Ms Reid |
| FIRST RESPONDENT: | Ms Clements |
| SECOND RESPONDENT: | Mr Jackson |
| THIRD RESPONDENT: | Ms White |
| FILE NUMBER: | PAC | 693 | of | 2011 |
| APPEAL NUMBER: | EA | 122 | of | 2014 |
| DATE DELIVERED: | 10 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 7 November 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 August 2014 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bates |
| SOLICITOR FOR THE APPELLANT: | Foat Associates Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | Mr Coyle of The Family Law Firm |
| THE SECOND RESPONDENT: | In person |
| THE THIRD RESPONDENT: | In person |
Orders made on 7 NOVEMBER 2014
The appeal be allowed.
Orders 1, 4, 5, 6, 7, 8, 9 10 and 12 of Judge Myers made on 4 August 2014 be set aside.
BY CONSENT:
Pending further order, orders in terms of paragraphs 4 and 5 of the Minute of Consent Orders signed by the parties and/or their legal representatives and initialled by me on 7 November 2014 marked as “Exhibit 1”.
There be no order for costs in relation to the appeal.
That the Court grants to the appellant a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (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 her in relation to the appeal.
That the Court grants to the 1st and 2nd respondents a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment…
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- Reid & Clements And Ors [2015] FamCAFC 33
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- [2015] FamCAFC 33
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CaseChat Overview and Summary
The court had to decide whether the primary judge correctly applied the relevant sections of the Family Law Act 1975 (Cth) and whether he adhered to the established principles for interim parenting hearings. The appeal was conceded by all parties, acknowledging that the primary judge failed to consider relevant statutory provisions and did not provide any reasons for his orders. The court found that the appeal succeeded on an error of law, as the orders appeared to disregard the best interests of the children, particularly baby B who was not yet one year old.
The court allowed the appeal and set aside the contested orders, noting that the children should spend time with the mother at a contact centre while the matter awaited further hearing. The court also granted costs certificates to the appellant and respondents for the appeal and the rehearing of the application, as per the Federal Proceedings (Costs) Act 1981 (Cth). The interim orders were modified to reflect the agreed arrangements pending the next hearing.
Orders
Orders of the court
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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
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