Rosa & Rosa

Case [2009] FamCAFC 81

FAMILY COURT OF AUSTRALIA

ROSA & ROSA [2009] FamCAFC 81

FAMILY LAW - APPEAL – CHILDREN – with whom a child lives and spends time with – where the Federal Magistrate did not allow the mother to relocate with the child from North West Queensland to Sydney – where the Federal Magistrate made orders for the child to spend equal time with each parent in North West Queensland – where the Federal Magistrate ordered that if the mother was not living in North West Queensland then the child would live with the father in North West Queensland and spend time with the mother as agreed – whether the Federal Magistrate gave adequate weight to a number of factors including the mother’s financial situation and emotional and physical isolation in North West Queensland – whether the Federal Magistrate’s orders imposed on the mother’s freedom of movement – whether the Federal Magistrate placed excessive weight on his findings that members of the mother’s family held a negative attitude towards the father – whether the Federal Magistrate erred in determining that the child should live on an equal time basis with each parent – consideration of the Federal Magistrate’s application of s 65DAA(5) of the Family Law Act 1975 (Cth) – no merit found in grounds – appeal dismissed.

FAMILY LAW - APPEAL – Application to adduce further evidence – where mother sought to adduce further evidence about the risk of lead poisoning in North West Queensland – application dismissed.

FAMILY LAW - COSTS – circumstances did not justify an order for costs.
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65DAA
Gronow v Gronow (1979) 144 CLR 513
Taylor & Barker (2007) FLC 93-345 [63]
Wiley & Wiley [2008] FamCAFC 153 [70]
APPELLANT: Mrs Rosa
RESPONDENT: Mr Rosa
FILE NUMBER: TVC 1196 of 2007
APPEAL NUMBER: NA 44 of 2008
DATE DELIVERED: 15 May 2009
PLACE DELIVERED: Canberra
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, May and Benjamin JJ
HEARING DATE: 5 August 2008
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 1 April 2008
LOWER COURT MNC: [2008] FMCAfam 427

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Jackson
SOLICITOR FOR THE APPELLANT: Antwan Lawyers
COUNSEL FOR THE RESPONDENT: Mr Page SC
SOLICITOR FOR THE RESPONDENT: Rod Madsen Solicitors

Orders

  1. That the application by the mother to adduce further evidence be dismissed.

  2. That the appeal by the mother against the orders of Federal Magistrate Coker made on 1 April 2008 be dismissed.

  3. That there be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Rosa & Rosa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 44 of 2008
File Number: TVC 1196 of 2007

Mrs Rosa

Appellant

And

Mr Rosa

Respondent

REASONS FOR JUDGMENT

  1. This is an appeal by Mrs Rosa, the mother, against orders made by Coker FM on 1 April…

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Details
AGLC
Rosa & Rosa [2009] FamCAFC 81
Case
[2009] FamCAFC 81
Decision Date

CaseChat Overview and Summary

The case of Rosa & Rosa was an appeal against the orders of a Federal Magistrate concerning the residence and time-sharing arrangements for a child between two parents. The mother, who was seeking to relocate with the child from North West Queensland to Sydney, was unsuccessful in her appeal against the Federal Magistrate's decision which maintained the child's residence in North West Queensland and established an equal time-sharing arrangement. Additionally, the mother sought to present further evidence about the risk of lead poisoning in North West Queensland, which the court also dismissed.

The primary legal issues that the court needed to address were whether the Federal Magistrate had adequately considered several factors, including the mother's financial circumstances and emotional and physical isolation in North West Queensland, and whether the Magistrate's orders unduly restricted the mother's freedom of movement. The court also needed to determine if the Magistrate had given disproportionate weight to the negative attitudes held by the mother's family towards the father, and whether it was appropriate for the child to have an equal time-sharing arrangement with both parents. Furthermore, the court examined the application of section 65DAA(5) of the Family Law Act 1975 (Cth).

The Federal Court found that the Magistrate had adequately considered the various factors and did not place undue emphasis on the family's negative views towards the father. The court also concluded that the equal time-sharing arrangement was in the best interest of the child. The mother's appeal was dismissed, and her application to present further evidence was denied. The court found no merit in the mother's grounds for appeal and did not deem the circumstances appropriate for an order of costs in relation to the appeal. The appeal was dismissed, and the orders of the Federal Magistrate were upheld.

Orders

Orders of the court

1.

That the application by the mother to adduce further evidence be dismissed.

2.

That the appeal by the mother against the orders of Federal Magistrate Coker made on 1 April 2008 be dismissed.

3.

That there be no order for costs in relation to the appeal.

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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