Treloar & Nepean - [2009] FamCAFC 206

FAMILY COURT OF AUSTRALIA

TRELOAR & NEPEAN

[2009] FamCAFC 206

FAMILY LAW - APPEAL – CHILDREN – In an appeal from the Federal Magistrates Court – Where the mother appeals against interim parenting orders – Where the Federal Magistrate ordered that the parents have equal shared parental responsibility – Whether such an order was appropriate in the circumstances – Where the recommendations of the single expert were conditional on findings of fact not possible at an interim hearing because of the limited evidence – Consideration of section 61DA(3) and (4), section 60CC (3) and (4) and section 65DAA(2) – Appeal allowed – Rehearing of interim applications ordered

FAMILY LAW - APPEAL – STAY – Where a partial stay of interim parenting orders was granted pending the hearing of the appeal – Where the mother appeals from that partial stay and sought a stay of orders until trial – Appeal allowed

Family Law Act 1975 (Cth); section 61DA; section 60CC; section 65DAA
Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Goode and Goode (2006) FLC 93-286

APPELLANT:

Ms Treloar

RESPONDENT:

Mr Nepean

FILE NUMBER:

SYM

3471

2006

FIRST APPEAL NUMBER:	EA	79	of	2009
SECOND APPEAL NUMBER:	EA	84	of	2009

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, May & Dawe JJ

HEARING DATE:

3 November 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 July 2009
27 July 2009

LOWER COURT MNC:

[2009] FamCAfam 745
[2009] FamCAfam 847

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Grahame Richardson SC with Suzanne Christie

SOLICITOR FOR THE APPELLANT:

Slade Manwaring Solicitors

COUNSEL FOR THE RESPONDENT:

John Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Paul & Paul Lawyers

Orders

The appeals EA 79 of 2009 and EA 84 of 2009 be allowed.
The orders made by the Federal Magistrate being orders 2, 4, 5 and 6 made on 14 July 2009 be set aside.
The matter be remitted for an interim hearing before a Federal Magistrate other than FM Altobelli.
Until further order, the mother have sole parental responsibility for the child, X.
Until the further hearing of the parties’ interim applications, the child spend time with the father:
(a) At all such times as the parties are agreed; and
(b)Failing agreement, for one weekend each calendar month, such weekend to be the second weekend, commencing at 10:00am Saturday until 5:00pm Sunday.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act1981 (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 against the interim parenting orders and the stay.
The Court grants to the respondent father a costs certificate pursuant to the provisions of section 6 of the Federal Proceedings (Costs) Act1981 (Cth)…

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: Treloar & Nepean [2009] FamCAFC 206
Case: [2009] FamCAFC 206
Decision Date: 20 November 2009

CaseChat Overview and Summary

In this case, the mother appealed against the interim parenting orders made by the Federal Magistrate, challenging the orders regarding shared parental responsibility and specific time arrangements for the child. The Federal Magistrate had ordered equal shared parental responsibility and set certain conditions for the child’s time with the father. The mother argued that the Magistrate’s order was inappropriate given the limited evidence available at the interim hearing. The court was required to determine whether the Federal Magistrate’s order was justified and whether the stay of interim parenting orders granted by the court was appropriate.

The court considered various sections of the Family Law Act, particularly sections 61DA(3) and (4), 60CC(3) and (4), and 65DAA(2), in the context of the evidence presented. The court noted that the recommendations of the single expert were conditional on findings of fact that could not be made at the interim hearing due to the limited evidence. Consequently, the court found that the Federal Magistrate's order was not appropriate given the circumstances. The court also examined the appropriateness of the partial stay granted on the interim parenting orders and decided that a complete stay until trial was warranted.

The appeals were allowed, and the orders made by the Federal Magistrate were set aside. The matter was remitted for an interim hearing before a different Federal Magistrate. Pending the rehearing, the mother was granted sole parental responsibility for the child, with the father having specified visitation times. Additionally, the court issued costs certificates to both parties, indicating that it would be appropriate for the Attorney-General to authorise payments for the costs incurred by both the mother and the father in relation to the appeal and rehearing.

Orders

Orders of the court

The appeals EA 79 of 2009 and EA 84 of 2009 be allowed.

The orders made by the Federal Magistrate being orders 2, 4, 5 and 6 made on 14 July 2009 be set aside.

The matter be remitted for an interim hearing before a Federal Magistrate other than FM Altobelli.

Until further order, the mother have sole parental responsibility for the child, X.

Until the further hearing of the parties’ interim applications, the child spend time with the father:

(a) At all such times as the parties are agreed; and

(b) Failing agreement, for one weekend each calendar month, such weekend to be the second weekend, commencing at 10:00am Saturday until 5:00pm Sunday.

The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 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 against the interim parenting orders and the stay.

The Court grants to the respondent father a costs certificate pursuant to the provisions of section 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 against the interim parenting orders and the stay.

The Court grants to both parties a costs certificate pursuant to the provisions of section 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 them in respect of the costs incurred by them in relation to the rehearing of the interim application.

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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