Walker and Sampson - [2011] FamCAFC 225

FAMILY COURT OF AUSTRALIA

WALKER & SAMPSON

[2011] FamCAFC 225

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Relocation ─ Best interests of child ─ Appeal against interlocutory orders of a Federal Magistrate ─ Not established that the appellant mother’s relocation was “urgent”, or in the nature of an “emergency” in any relevant sense ─ Where within the constraints which the evidence imposed upon the learned Federal Magistrate, of which her Honour was acutely aware, the “best interests” of the parties’ three children were considered and the findings of fact as were able to inform that consideration, have not been shown to have been other than reasonably open to the learned Federal Magistrate ─ Not established that the learned Federal Magistrate erred in accepting the expert opinion evidence of the family consultant or that her Honour placed “inappropriate” or excessive weight on that evidence ─ Where given the distance between the parents’ places of residence, the likelihood of a final hearing in January 2012, and the absence of any application by the mother for orders that she do so, that the learned Federal Magistrate’s failure to make any orders that the child spend time with the mother on an interim basis does not enliven appellate intervention ─ Not established that the learned Federal Magistrate erred in declining to defer determination of interlocutory proceedings until after the appointment of the Independent Children’s Lawyer ─ Appeal dismissed

FAMILY LAW ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the Court was not persuaded that the appellant mother’s financial circumstances militate against making an order for costs of the appeal ─ Where the Court had raised the utility of the appeal with Counsel for the appellant mother, notwithstanding which the appellant mother persisted with the appeal ─ Where the appellant mother’s appeal was an exercise in futility bordering on an abuse of the Court’s processes ─The appellant mother to pay the respondent father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) Part VII

Allesch v Maunz (2000) 203 CLR 172
Bennett & Bennett (1991) FLC 92-191
Iris & Cohen (No 2) [2011] FamCAFC 120

APPELLANT:

Ms Walker

RESPONDENT:

Mr Sampson

INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

FILE NUMBER:

BRC

8581

2009

APPEAL NUMBER:

2011

DATE DELIVERED:

1 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Coleman, Strickland & Murphy JJ

HEARING DATE:

31 October 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 July 2011

LOWER COURT MNC:

[2011] FMCAfam 819

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Wilson

SOLICITOR FOR THE APPELLANT:

Kathleen Dare & Associates

COUNSEL FOR THE RESPONDENT:

Mr Bunning

SOLICITOR FOR THE RESPONDENT:

Richardson McGhie

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cameron

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton Solicitor

Orders

That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as…

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 Walker and Sampson

Details

AGLC: Walker and Sampson [2011] FamCAFC 225
Case: [2011] FamCAFC 225
Decision Date: 1 December 2011

CaseChat Overview and Summary

The case of Walker and Sampson involved a dispute between the parties over parenting arrangements following a relocation of the mother, which the father contested. The Federal Circuit Court heard the matter, and the mother subsequently appealed the interlocutory orders made by the court to the Family Court of Australia. The primary concern was whether the relocation of the mother was urgent or in the nature of an emergency and whether the Federal Magistrate had erred in considering the best interests of the three children.

The legal issues addressed in the appeal were the urgency of the mother's relocation, the weight given to the expert opinion evidence, and the timing of the determination of the interlocutory proceedings. The mother argued that the Federal Magistrate had erred in accepting the family consultant's opinion and that the decision not to allow her to spend time with the children on an interim basis was unjust. The court needed to determine if these arguments had merit and whether the Magistrate's decisions were reasonable within the constraints of the evidence.

The court found that the mother had not established that her relocation was urgent or an emergency, and that the findings of the Federal Magistrate were reasonably open to her. The court also held that there was no error in the weight placed on the expert opinion evidence. Additionally, the court noted that the distance between the parents' residences and the timing of the final hearing meant that the Magistrate's decision not to order interim time with the mother was not grounds for appellate intervention. The court further found that there was no error in the Magistrate's decision not to defer the interlocutory proceedings. Consequently, the appeal was dismissed, and the mother was ordered to pay the father's costs of the appeal.

In summary, the court dismissed the mother's appeal and ordered her to pay the father's costs, finding that the appeal was unsuccessful and that there was no basis for the arguments presented. The court highlighted the mother's persistence with the appeal despite being advised of its futility, characterizing it as bordering on an abuse of the court process.

Orders

Orders of the court

That the appeal be dismissed.

That the mother pay the father’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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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