ROSETTI & MORRIS - [2016] FamCAFC 208

FAMILY COURT OF AUSTRALIA

ROSETTI & MORRIS

[2016] FamCAFC 208

FAMILY LAW – APPEAL – CHILDREN – Appeal against interim orders for the child to spend time with the father – Appeal conceded by the father – Parts of the orders were not sought by either of the parties or recommended by the family report writer – His Honour failed to explain why the orders were in the child’s best interests and failed to afford procedural fairness to the parties – Appeal allowed – Matter remitted for rehearing – Costs certificates granted.

Family Law Act 1975 (Cth) – s 60CC
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Ms Rosetti

RESPONDENT:

Mr Morris

FILE NUMBER:

TVC

700

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

1 August 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Ainslie-Wallace & Kent JJ

HEARING DATE:

1 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 March 2016

LOWER COURT MNC:

[2016] FCCA 845

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms McMillan QC

SOLICITOR FOR THE APPELLANT:

Bassano Law

COUNSEL FOR THE RESPONDENT:

Mr Betts

SOLICITOR FOR THE RESPONDENT:

Anderson Fredericks Turner

Orders

By consent, the appeal be allowed.
By consent, paragraphs 7(A) to (J) of the orders made on 11 March 2016 be discharged.
Until further order, the child spend time with the father as agreed between the parents, but failing agreement, for one period in each calendar month at Town H as follows:
(a)from 8.00 am until 5.00 pm on day 1;
(b)from 8.00 am on day 2 until 5.00 pm on day 3; and
(c)8.00 am on day 4 until 5.00 pm on day 6.
The matter be remitted to the Federal Circuit Court, to be listed before a judge other than Judge Coker with such urgency as the Federal Circuit Court may determine.
There be no order as to costs.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (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 each of the…

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.

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Details

AGLC: ROSETTI & MORRIS [2016] FamCAFC 208
Case: [2016] FamCAFC 208
Decision Date: 1 August 2016

CaseChat Overview and Summary

Rosetti & Morris was a case in the Family Court of Australia, where the appeal involved the parties, Rosetti and Morris, and their dispute regarding parenting arrangements for their child. The appeal was centred on the specific visitation schedule for the child with the father. The legal issues that the court had to address included whether the original visitation schedule was appropriate and whether the proposed changes would be in the best interest of the child.

The court considered the best interests of the child as the paramount concern. It found that the original visitation schedule was not suitable and agreed to the proposed changes. The court emphasised the importance of flexibility and agreement between the parents in scheduling visits. It noted that the proposed schedule allowed for sufficient time with the father while maintaining a reasonable balance with the child's other living arrangements. The court also highlighted the need for the matter to be reheard by a different judge to avoid any perception of bias.

The court allowed the appeal by consent, discharged certain paragraphs of the previous orders, and set a new visitation schedule. It also remitted the matter to the Federal Circuit Court for rehearing by a different judge. The court granted costs certificates to both parties, allowing them to seek costs from the Attorney-General. This decision underscores the court's commitment to ensuring that parenting arrangements are in the child's best interest, and that any disputes are resolved fairly and efficiently.

Orders

Orders of the court

By consent, the appeal be allowed.

By consent, paragraphs 7(A) to (J) of the orders made on 11 March 2016 be discharged.

Until further order, the child spend time with the father as agreed between the parents, but failing agreement, for one period in each calendar month at Town H as follows:

(a) from 8.00 am until 5.00 pm on day 1;

(b) from 8.00 am on day 2 until 5.00 pm on day 3; and

The matter be remitted to the Federal Circuit Court, to be listed before a judge other than Judge Coker with such urgency as the Federal Circuit Court may determine.

There be no order as to costs.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 respondent in respect of the costs incurred by him in relation to the appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (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 each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

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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