SOULOS & SORBO

Case [2019] FamCAFC 231

FAMILY COURT OF AUSTRALIA

SOULOS & SORBO [2019] FamCAFC 231

FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal from parenting orders permitting the mother and child to relocate overseas – Where the Independent Children’s Lawyer supports the father’s appeal – Where the primary judge found that there was a risk of harm to the child in the father’s care, however, it was not an unacceptable risk – Where the father submitted that the primary judge’s finding as to a risk of harm was not open on the evidence – Where there was no evidence that would support a finding that the child was at risk of harm from his father – Where the expert witness did not support the child relocating overseas with the mother – Where the primary judge omitted to take into account a relevant factor and took into account a mistaken factor – Where the father submitted that the primary judge erred in considering the issue of family violence – Where the issue of family violence was a core issue and weighed greatly in the final determination – Where two grounds of appeal of substance succeeded – Where the orders must be set aside and the matter remitted for a second rehearing.

FAMILY LAW – APPEAL – COSTS – Where no order for costs was sought in the event that the appeal was successful – Where costs certificates will be granted to each of the parties for the appeal and the rehearing.
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
Family Law Act 1975 (Cth) ss 4AB, 60CC, 61DA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232
Browne v Dunn (1893) 6 R 67
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
De Winter and De Winter (1979) FLC 90-605
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Lee v Lee (2019) 93 ALJR 993; [2019] HCA 28
Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sahrawi & Hadrami (2018) FLC 93–857; [2018] FamCAFC 170
APPELLANT: Mr Soulos
RESPONDENT: Ms Sorbo
INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors
FILE NUMBER: PAC 5406 of 2012
APPEAL NUMBER: EA 166 of 2018
DATE DELIVERED: 3 December 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Strickland, Aldridge & Austin JJ
HEARING DATE: 4 July 2019
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 21 December 2018
LOWER COURT MNC: [2018] FamCA 1121

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Cummings SC with Ms Tabbernor
SOLICITOR FOR THE APPELLANT: Thurlows Family Lawyers
COUNSEL FOR THE…

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AGLC
SOULOS & SORBO [2019] FamCAFC 231
Case
[2019] FamCAFC 231
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the case of SOULOS & SORBO was heard on appeal from parenting orders that allowed the mother and child to relocate overseas. The father contested these orders, supported by the Independent Children’s Lawyer. The primary judge found that there was a risk of harm to the child in the father's care, but it was not an unacceptable risk. The father argued that the primary judge's findings were not supported by the evidence and that there was no risk of harm from him. Additionally, the father claimed that the primary judge erred in considering the issue of family violence, which was a core issue in the case.

The court was required to decide whether the primary judge's findings regarding the risk of harm and family violence were supported by the evidence. The court also had to determine if the primary judge omitted relevant factors or considered mistaken factors in making the orders. The father's appeal raised two substantial grounds: the primary judge's consideration of family violence and the assessment of the risk of harm. The court found that the primary judge erred in these respects, leading to the conclusion that the orders should be set aside.

The appeal was allowed, and the orders made on 21 December 2018 were set aside. The matter was remitted for a rehearing by a different judge of the Family Court of Australia. The court granted costs certificates to each party involved, including the father, the mother, and the Independent Children’s Lawyer, for the costs incurred in the appeal and the rehearing. This ensures that each party can seek reimbursement of their legal costs under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders made on 21 December 2018 be set aside.

3.

The matter be remitted for rehearing by a judge of the Family Court of Australia other than the primary judge.

4.

The Court grants to the appellant father 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 him in relation to the appeal.

5.

The Court grants to the respondent mother 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 her in relation to the appeal.

6.

The Court grants to the Independent Children’s Lawyer 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 Independent Children’s Lawyer in respect of the costs incurred by her in relation to the appeal.

7.

The Court grants to each of the parties, including the Independent Children’s Lawyer, 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 father, respondent mother and Independent Children’s Lawyer 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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