SEARLE & MELLOR - [2017] FamCAFC 46

FAMILY COURT OF AUSTRALIA

SEARLE & MELLOR

[2017] FamCAFC 46

FAMILY LAW – APPEAL – CHILDREN – Inadequate reasons – Where the mother appeals against interim parenting orders which removed the previously ordered supervision of the children’s time with the father – Appeal allowed – Orders set aside – Application for interim parenting orders remitted for rehearing – Costs certificates for the appeal granted.

Family Law Act 1975 (Cth) ss 60CC, 94AA

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Regulations 1984 (Cth) reg 15A(1)(a)

A v J (1995) FLC 92-619
Bennett & Bennett (1991) FLC 92-191
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT:

Ms Searle

RESPONDENT:

Mr Mellor

FILE NUMBER:

PAC

1613

2014

APPEAL NUMBER:

2016

DATE DELIVERED:

27 March 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie‑Wallace and Hogan JJ

HEARING DATE:

21 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 May 2016

LOWER COURT MNC:

[2016] FCCA 1745

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Murphy

SOLICITOR FOR THE APPELLANT:

CBD Legal

COUNSEL FOR THE RESPONDENT:

Mr Hill

SOLICITOR FOR THE RESPONDENT:

Farah Lawyers, Solicitors & Barristers

Orders

That the appeal be allowed.
That Orders 1, 3, 4, 5 and 6 of the orders made by Judge Newbrun on 17 May 2016 be set aside.
That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.
There be no order as to costs.
That 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.
That 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.

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 Searle & Mellor 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…

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 SEARLE & MELLOR

Details

AGLC: SEARLE & MELLOR [2017] FamCAFC 46
Case: [2017] FamCAFC 46
Decision Date: 27 March 2017

CaseChat Overview and Summary

In the case of Searle & Mellor, the mother, Searle, appealed against interim parenting orders made by Judge Newbrun on 17 May 2016. The orders removed the previously ordered supervision of the children’s time with the father, Mellor. The Family Court of Australia heard the appeal, with the primary legal issues being the adequacy of the reasons provided by Judge Newbrun for the removal of the supervision and whether the decision was in the best interests of the children.

The court found that Judge Newbrun's reasons were inadequate. The court highlighted that the decision to remove supervision was significant and required robust justification, particularly given the ongoing nature of the dispute and the potential impact on the children. The court determined that the reasons provided did not adequately address the statutory considerations under section 60CC of the Family Law Act 1975 (Cth), which require that the court's paramount consideration be the best interests of the child. Consequently, the appeal was allowed, and the orders were set aside.

The court remitted the application for interim parenting orders to the Federal Circuit Court of Australia for rehearing before a different judge. This decision underscored the importance of clear and comprehensive reasoning in family law cases, particularly when significant changes to parenting arrangements are proposed. The court also granted costs certificates for the appeal, reflecting the significant nature of the issues and the need for both parties to bear their own costs.

The final orders included allowing the appeal, setting aside the contested orders, remitting the application for rehearing, and issuing costs certificates for both parties in relation to the appeal. This outcome highlights the need for detailed and legally sound reasoning in family law matters, particularly concerning the welfare of children.

Orders

Orders of the court

That the appeal be allowed.

That Orders 1, 3, 4, 5 and 6 of the orders made by Judge Newbrun on 17 May 2016 be set aside.

That the applications for interim parenting orders be remitted to the Federal Circuit Court of Australia for rehearing before a judge other than Judge Newbrun.

There be no order as to costs.

That 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.

That 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.

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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