Reynolds & Sherman

Case [2016] FamCAFC 240

FAMILY COURT OF AUSTRALIA

REYNOLDS & SHERMAN [2016] FamCAFC 240

FAMILY LAW – APPEAL – CHILDREN – Child’s surname – Where the mother appeals against an order that the child’s surname be hyphenated – Where an order as to a child’s name is a parenting order pursuant to s 64B(2)(i) of the Family Law Act 1975 (Cth) and the court must regard the best interests of the child as the paramount consideration – Whether the primary judge took into account irrelevant considerations or failed to take into account relevant considerations – Whether the primary judge prevented the mother from addressing issues during her cross-examination of the father – No appealable error established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Where the appellant receives Centrelink benefits – Appellant ordered to pay the respondent’s costs of the appeal.

Births, Deaths and Marriages Registration Act 2003 (Qld) s 8(2)(c)

Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC, 61B, 64B, 117(2A)(a)

Family Law Rules 2004 (Cth) Schedule 3

Chapman and Palmer (1978) FLC 90-510
De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513
Herridge & Handerson and Ors (2011) FLC 93-474
House v The King (1936) 55 CLR 499
Idoport Pty Limited v National Australia Bank Limited and Ors, Idoport Pty Limited v Donald Robert Argus [2007] NSWSC 23
Lenova & Lenova (Costs) [2011] FamCAFC 141
Norbis v Norbis (1986) 161 CLR 513
Reynolds & Sherman [2015] FamCAFC 128
Rollings v Rollings (2009) 230 FLR 396

APPELLANT: Ms Reynolds
RESPONDENT: Mr Sherman
FILE NUMBER: BRC 8456 of 2013
APPEAL NUMBER: NA 8 of 2016
DATE DELIVERED: 29 November 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Ryan, Murphy & Aldridge JJ
HEARING DATE: 1 August 2016
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 29 January 2016
LOWER COURT MNC: [2016] FCCA 42

REPRESENTATION

FOR THE APPELLANT: The appellant in person
COUNSEL FOR THE RESPONDENT: Mr J Bunning
SOLICITOR FOR THE RESPONDENT: Tubaro Lawyers

Orders

  1. The appeal be dismissed.

  2. The appellant mother is to pay the respondent father’s costs of the appeal assessed in the sum of $8000.   Such sum is to be payable within 12 months of the date of these orders.  

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Reynolds & Sherman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 8 of 2016
File Number:…

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Reynolds & Sherman [2016] FamCAFC 240
Case
[2016] FamCAFC 240
Decision Date

CaseChat Overview and Summary

The matter involved an appeal by a mother, referred to as the appellant, against a Family Court order which required her child’s surname to be hyphenated. The appeal was heard in the Family Court of Australia. The primary judge had ruled that the child’s surname should be hyphenated, reflecting the surnames of both parents, in line with the child’s best interests as outlined in the Family Law Act 1975. The mother contested this decision, arguing that the primary judge had either taken into account irrelevant factors or failed to consider relevant ones. Additionally, she claimed that she was not allowed to address certain issues during her cross-examination of the father.

The legal issues before the court were whether the primary judge had erred by considering irrelevant factors or by omitting to consider relevant ones, and whether the primary judge had unduly restricted the mother’s ability to cross-examine the father. The court assessed these arguments within the framework of section 64B(2)(i) of the Family Law Act, which mandates that the best interests of the child must be the paramount consideration when making parenting orders. The court also examined whether the primary judge had prevented the mother from adequately addressing relevant issues during her cross-examination.

In its decision, the court found that the primary judge had not committed any appealable error. The court held that the primary judge had appropriately considered the relevant factors and had not prevented the mother from addressing pertinent issues during the cross-examination. Consequently, the appeal was dismissed, and the original order regarding the child's surname was upheld. Furthermore, given that the mother had been wholly unsuccessful in her appeal and received Centrelink benefits, the court ordered her to pay the father’s costs of the appeal, assessed at $8000, to be paid within 12 months of the date of the orders.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant mother is to pay the respondent father’s costs of the appeal assessed in the sum of $8000. Such sum is to be payable within 12 months of the date of these orders.

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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