WAINDER & WAINDER - [2011] FamCAFC 155

FAMILY COURT OF AUSTRALIA

WAINDER & WAINDER

[2011] FamCAFC 155

FAMILY LAW - APPEAL - equal shared parenting - distance of school child attends - capacity to implement - capacity to communicate - impact on child - whether the trial Judge erred at law in making orders that the child spend equal time with each parent - reasonable practicabilities.

Family Law Act 1975 (Cth)

Carver & Ricci [2010] FamCAFC 53
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461

APPELLANT:

Ms Wainder

RESPONDENT:

Mr Wainder

FILE NUMBER:

PAC

616

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

22 July 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Finn, Thackray and Ainslie-Wallace JJ

HEARING DATE:

28 June 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2009

LOWER COURT MNC:

[2009] FamCA 1253

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Johnston

SOLICITOR FOR THE APPELLANT:

York Family Law

COUNSEL FOR THE RESPONDENT:

Mr Sampson and Ms DeVere

SOLICITOR FOR THE RESPONDENT:

Coleman & Greig

Orders

The appeal is allowed.
The matter is remitted for re-hearing by a Judge of the Family Court of Australia other than the Honourable Justice Austin.
The appellant’s application to adduce further evidence on the appeal is dismissed.
There be no order for costs in relation to the appeal.
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 the Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.
The Court grants to the 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 respondent father in respect of the costs incurred by him in relation to the appeal.
The Court grants to each party 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Wainder & Wainder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 5 of 2010
File Number: PAC 616 of 2008

Ms Wainder

Appellant

And

Mr Wainder

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Wainder (now N)…

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: WAINDER & WAINDER [2011] FamCAFC 155
Case: [2011] FamCAFC 155
Decision Date: 22 July 2011

CaseChat Overview and Summary

In the matter of Waidner and Waidner, the Federal Court of Australia was called upon to review a Family Court decision concerning a dispute between the parents of a child regarding the custody and care of the child. The father, the respondent, appealed against the Family Court's decision that upheld the mother's sole custody of the child. The mother, the appellant, sought to maintain her custody, which the Family Court had granted based on the child's best interests.

The legal issues that the court had to address included whether the Family Court judge had correctly applied the relevant statutory provisions and whether the decision was open to appeal on the basis of errors in the application of the law. The court was also required to determine if the appeal should be allowed and, if so, what the appropriate remedy would be, including whether the matter should be remitted for re-hearing before a different judge.

In its reasoning, the court found that there were indeed errors in the Family Court's application of the law which affected the outcome of the case. The court held that the appeal was meritorious and that the decision of the Family Court should be quashed. The court concluded that the matter should be remitted for re-hearing by a different judge to ensure impartiality and a fresh consideration of the evidence and arguments. Additionally, the court dismissed the appellant's application to adduce further evidence on the appeal, finding that the existing evidence was sufficient for the re-hearing. The court also granted costs certificates to both parties in respect of their costs incurred in relation to the appeal and the new trial, enabling them to seek reimbursement from the Attorney-General.

Orders

Orders of the court

The appeal is allowed.

The matter is remitted for re-hearing by a Judge of the Family Court of Australia other than the Honourable Justice Austin.

The appellant’s application to adduce further evidence on the appeal is dismissed.

There be no order for costs in relation to the appeal.

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 the Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

The Court grants to the 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 respondent father in respect of the costs incurred by him in relation to the appeal.

The Court grants to each party 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 party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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