WILCOX & WILCOX - [2012] FamCAFC 21

FAMILY COURT OF AUSTRALIA

WILCOX & WILCOX

[2012] FamCAFC 21

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Best interests of the child ─ Not established that the learned Federal Magistrate failed to have any, or to have proper regard to the parties’ proposals ─ Where the Court was not persuaded that his Honour inadequately revealed the reasoning process which led him to his conclusion with respect to the child’s best interests ─ Where the Court was not persuaded that the learned Federal Magistrate erred in relation to the orders which facilitated the transportation to and from changeovers either as a matter of discretion or by providing inadequate reasons for his decision ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ Procedural fairness ─ Where it was asserted that although the learned Federal Magistrate was entitled to make orders which neither party sought, his Honour had erroneously failed to afford the parties the opportunity to be heard in relation to the possible making of such orders, thereby denying them natural justice ─ Where the course which the trial took would or should have left no one in the court in doubt that arrangements for the child’s care other than those sought by his parents were being considered, and that orders other than those which each party expressly sought may be made ─ Where it is not insignificant in the context of a natural justice complaint that it was the learned Federal Magistrate who repeatedly raised the question of what arrangements were likely to be in the child’s best interests ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the father is to pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) ss 60CC, 65DAA

Bennett & Bennett (1991) FLC 92-191
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tatmar PastoralCo Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155
U v U (2002) 211 CLR 238

APPELLANT:

Mr Wilcox

RESPONDENT:

Ms Wilcox

FILE NUMBER:

PAC

1483

2009

APPEAL NUMBER:

EAA

107

2010

DATE DELIVERED:

17 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & Murphy JJ

HEARING DATE:

31 January 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 August 2010

LOWER COURT MNC:

[2010] FMCAfam 966

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dura

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

Orders

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilcox & Wilcox has been approved by the Chief Justice pursuant to s…

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: WILCOX & WILCOX [2012] FamCAFC 21
Case: [2012] FamCAFC 21
Decision Date: 17 February 2012

CaseChat Overview and Summary

The appeal was brought by the father, challenging a decision made by the Federal Circuit Court concerning the parenting arrangements of his child. The father argued that the court had failed to consider the parties' proposals, had not adequately revealed its reasoning, and had not afforded the parties procedural fairness by not allowing them to be heard on potential orders not sought by either party. The mother, in turn, sought costs associated with the appeal. The matter was heard in the Family Court of Australia.

The central legal issues were whether the Federal Magistrate had erred in not considering the parties' proposals for parenting arrangements, in not adequately explaining the reasoning behind the decision, and in failing to provide procedural fairness by not allowing the parties to be heard on potential orders. The father also questioned the court's discretion in facilitating transportation arrangements for the child.

The court found that there was no evidence to suggest that the Federal Magistrate had failed to consider the parties' proposals or had inadequately explained his reasoning. It was noted that the course of the trial indicated that alternative arrangements for the child's care were being considered. Furthermore, the court was not persuaded that the magistrate had failed to afford the parties procedural fairness. The court held that the father's complaints were without merit. As the appeal was wholly unsuccessful, the father was ordered to pay the mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis.

The court dismissed the appeal and ordered that the father pay the mother's costs of and incidental to the appeal as agreed or assessed on a party and party basis.

Orders

Orders of the court

That the appeal be dismissed.

That the father pay the mother’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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