Renald and Renald (No 2) - [2017] FamCAFC 133

FAMILY COURT OF AUSTRALIA

RENALD & RENALD (NO 2)

[2017] FamCAFC 133

FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Magistrate refused to issue a recovery order for two of the parties’ seven children held over by the father after school holidays in breach of recent consent orders – Absence of a formal order dismissing mother’s application for a recovery order not appealable error – Magistrate erred in failing to consider the reports of the Single Expert – Magistrate erred in failing to consider factors in s 60CC of the Family Law Act 1975 (Cth) including best interests of the children.

FAMILY LAW – APPEAL – CHILDREN – Re-exercise of discretion – Updated Single Expert report received as further evidence in the appeal – Children’s interests the paramount consideration – Impact of order on other siblings considered – Father’s conduct in not complying with court orders considered – Bondelmonte v Bondelmonte (2017) 341 ALR 179 applied – Differing considerations apply to the two children who have now been with the father for six months – Older child permitted to decide whether to remain living with the father or return to the mother – In the best interests of the younger child to return to the mother pending the trial of the substantive dispute – Father ordered to return the younger child to the mother – If the father fails to comply with the order, a recovery order will issue.

Family Law Act 1975 (Cth) s 60CC

Bondelmonte v Bondelmonte (2017) 341 ALR 179

APPELLANT:

Ms Renald

RESPONDENT:

Mr Renald

FILE NUMBER:

PTW

6955

2015

APPEAL NUMBER:

12L

2017

DATE DELIVERED:

14 July 2017

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

13 June 2017 and 11 July 2017

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

10 March 2017

LOWER COURT MNC:

N/A

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Berry SC

SOLICITOR FOR THE APPELLANT:

Dimond Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Mwenda

SOLICITOR FOR THE RESPONDENT:

O’Sullivan Davies

Orders

The appeal be allowed.
By not later than Monday 17 July 2017, the respondent shall deliver up to the appellant such of the parties’ children as are residing with the respondent, except for the child B born in 2002 (“B”) who may elect to remain with the father if he wishes to do so.
In the event the respondent fails to comply with Order 2, a recovery order in the usual form shall (upon written request of the appellant) issue for the delivery up to the appellant of any of the children remaining with the respondent, other than B.
Pending further order, the orders made on 15 April 2016 shall remain in full force and effect.
The appellant shall file and serve submissions (not exceeding five pages) in support of any application for costs (or for the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)) within 14…

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 Renald and Renald (No 2)

Details

AGLC: Renald and Renald (No 2) [2017] FamCAFC 133
Case: [2017] FamCAFC 133
Decision Date: 14 July 2017

CaseChat Overview and Summary

In Renald and Renald (No 2), the Family Court of Australia was asked to determine whether it should grant an appeal regarding the care of two children out of seven, who were held by the father after school holidays in breach of recent consent orders. The mother appealed a decision by a magistrate who had refused to issue a recovery order for the children. The legal issues before the court were whether the magistrate's decision not to issue the recovery order was an appealable error, and if the magistrate erred in failing to consider relevant reports and statutory factors concerning the children's best interests.

The court found that the magistrate's refusal to issue a recovery order due to the absence of a formal order dismissing the mother's application was not an appealable error. However, the court also determined that the magistrate had erred in not considering the reports of the Single Expert and the factors outlined in section 60CC of the Family Law Act 1975 (Cth). These factors included the best interests of the children, which the magistrate failed to properly assess. The court further held that the magistrate's discretion in re-exercising the decision should consider the children's interests as paramount, the impact of the order on other siblings, and the father's conduct in not complying with court orders. The court applied the principles from Bondelmonte v Bondelmonte and found that the older child should be permitted to decide whether to remain with the father or return to the mother, whereas it was in the best interests of the younger child to return to the mother pending the trial of the substantive dispute.

The court allowed the appeal and ordered the father to return the younger child to the mother by a specified date, with the option for the older child to decide to stay with the father. If the father failed to comply with the order, a recovery order would issue for the delivery of the children to the mother. The orders also detailed the process for any future applications for costs, stipulating the number of pages allowed for submissions and the timeframes for filing and serving these documents.

Orders

Orders of the court

The appeal be allowed.

By not later than Monday 17 July 2017, the respondent shall deliver up to the appellant such of the parties’ children as are residing with the respondent, except for the child B born in 2002 (“B”) who may elect to remain with the father if he wishes to do so.

In the event the respondent fails to comply with Order 2, a recovery order in the usual form shall (upon written request of the appellant) issue for the delivery up to the appellant of any of the children remaining with the respondent, other than B.

Pending further order, the orders made on 15 April 2016 shall remain in full force and effect.

The appellant shall file and serve submissions (not exceeding five pages) in support of any application for costs (or for the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth)) within 14 days of the date of this order.

In the event that the appellant files and serves submissions in accordance with Order 5, the respondent shall file and serve submissions (not exceeding five pages) in response within 14 days of service of the appellant’s submissions.

In the event that the respondent files and serves submissions in accordance with Order 6, the appellant be at liberty to file and serve submissions (not exceeding two pages) in reply within seven days of service of the respondent’s submissions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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