FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the treatment of evidence of the mother’s psychologist in relation to the mother’s mental health and emotional wellbeing – Where the Federal Magistrate did have regard to the impact the return would have on the mother and the children and was entitled to treat the psychologist’s evidence as she did in the context of other expert evidence before the Court, no error demonstrated.
FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the application of the legislative pathway for the making of parenting orders under the Act – Where consent orders assigning equal shared parental responsibility between the mother and each respective father were made prior to the delivery of reasons for judgment – Where having made such orders, the Federal Magistrate was obliged to follow the legislative pathway and consider orders for equal, or alternatively substantial and significant time and erred by failing to do so – Where the Federal Magistrate considered the mother’s proposed relocation alone on its merits, then having decided not to allow the application, considered what time the father should spend with the children – Where the Federal Magistrate erred by treating the mother’s application for relocation as the primary issue for determination and by failing to make parenting orders based on an evaluation of each party’s proposal and in accordance with the prescribed legislative pathway applicable to parenting cases, including relocation cases – appeal allowed and applications remitted for rehearing.
FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the appellant mother sought to adduce further evidence detailing her account of events since the decision of the Federal Magistrate denying her relocation application – Where counsel for the mother accepted that the majority of the evidence was contentious but contended it should be admitted to demonstrate the Federal Magistrate’s decision was wrong – Where the appeal is to be allowed, however the controversial nature of the further evidence makes it impossible for this Court to
re-exercise the discretion and the matter must be remitted, rendering the evidence unnecessary in the appeal – application dismissed.
[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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AGLC
SAYER & RADCLIFFE AND ANOR
[2012] FamCAFC 209
Case
[2012] FamCAFC 209
Decision Date
CaseChat Overview and Summary
Sayer v Radcliffe is an appeal against parenting orders made in the Federal Magistrates Court by a mother against her ex-partner, the father of their child. The mother sought to adduce new evidence and appeal the parenting orders made by Federal Magistrate Turner on 17 April 2012. The primary legal issue was whether the appeal against the parenting orders was successful and, if so, what orders should be made in relation to the new evidence, the parenting applications, and costs. The court had to consider the circumstances of the case, the quality of the evidence, and the principles of natural justice and procedural fairness.
The court found that the appeal was successful in that the mother had not been given an opportunity to adduce new evidence in relation to the father's alleged unfitness to parent. The court held that the mother's application to adduce further evidence should have been allowed, and that the parenting orders should be set aside and remitted for re-hearing before a different Federal Magistrate. The court also found that the interim orders should remain in place until the re-hearing. In relation to costs, the court granted costs certificates to both parties in respect of the appeal and the re-hearing, and found that it would be appropriate for the Attorney-General to authorise payments under the Federal Proceedings (Costs) Act 1981 (Cth).
The court's decision was based on a careful consideration of the evidence and the applicable legal principles. The court held that the mother's right to procedural fairness had been breached, and that the parenting orders should be set aside and re-heard before a different Federal Magistrate. The court also found that the interim orders should remain in place until the re-hearing, and that both parties were entitled to costs certificates in relation to the appeal and the re-hearing. The court's decision highlights the importance of procedural fairness and the need for Federal Magistrates to ensure that all parties have an opportunity to adduce relevant evidence in parenting cases.
Orders
Orders of the court
1.
The appeal be allowed.
2.
Orders 5, 6, 7, 9, 10, 12 and 13 of the orders made by Federal Magistrate Turner on 17 April 2012 be set aside.
3.
The application of the appellant mother to adduce further evidence filed on 17 August 2012 be dismissed.
4.
The parenting applications of the appellant mother and the first respondent father be remitted for re-hearing before a Federal Magistrate other than
Federal Magistrate Turner.
5.
Until the hearing and determination of the re-hearing, interim orders are made in terms of orders 5, 6, 7, 9, 10, 12 and 13 of the orders made by
Federal Magistrate Turner on 17 April 2012.
6.
There be no order as to costs.
7.
The Court grants to the appellant mother 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 mother in respect of the costs incurred by her in relation to the appeal against the parenting orders.
8.
The Court grants to the first respondent father 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 first respondent father in respect of the costs incurred by him in relation to the appeal against the parenting orders.
9.
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 them in relation to the re-hearing.