Reid & Clements And Ors - [2015] FamCAFC 33

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

2011

APPEAL NUMBER:

122

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 1^st and 2^nd 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…

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 Reid & Clements And Ors

Details

AGLC: Reid & Clements And Ors [2015] FamCAFC 33
Case: [2015] FamCAFC 33
Decision Date: 10 March 2015

CaseChat Overview and Summary

In this appeal, the Independent Children's Lawyer, Ms Reid, challenged interim orders made by Judge Myers in the Federal Circuit Court of Australia regarding the parenting arrangements for three children, T, C, and B. The parents, Mr Jackson and Ms Clements, were seeking different parenting orders, with concerns also raised about the mother's emotional wellbeing and an Apprehended Violence Order against her. On 4 August 2014, Judge Myers ordered a regime where the children would spend one day with each parent, which was immediately appealed by Ms Reid on the basis of errors of law and lack of proper reasoning.

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