Winter & Winter - [2008] FamCAFC 159

FAMILY COURT OF AUSTRALIA

WINTER & WINTER

[2008] FamCAFC 159

FAMILY LAW - APPEAL - CHILDREN - Relocation - Where father appealed against orders allowing the mother to relocate children from Sydney to the Gold Coast - Where father argued that the trial Judge erred in failing to give adequate reasons as to why relocation was in the best interests of the children - Where father argued that the trial Judge erred in failing to give adequate reasons for departing from the family consultant’s unchallenged evidence - Appeal allowed - Matter remitted for re-hearing
FAMILY LAW – COSTS - Certificates ordered for appeal and re-hearing under Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act 1975 (Cth), s 62G
Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9

Bennett and Bennett (1991) FLC 92-191
D and P [2006] FamCA 170
Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378
Sampson and Hartnett (No 10) (2007) FLC 93-350
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tyson and Tyson (No 2) (1993) FLC 92-401

APPELLANT:

MR WINTER

RESPONDENT:

MS WINTER

FILE NUMBER:

SYF

3583

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

27 October 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray and Ryan JJ

HEARING DATE:

2 September 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 June 2008

LOWER COURT MNC:

[2008] FamCA 400

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R Lethbridge SC

SOLICITOR FOR THE APPELLANT:

Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms A Rees

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

Orders

That the appeal is allowed.
That orders 2, 5, 7, 10, 11 and 12 made by the Honourable Justice O’Ryan on 6 June 2008 are set aside.
That the matter is remitted for rehearing before a judge other than the Honourable Justice O’Ryan.
That the Court grants to the appellant father 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 father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provision 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 mother in respect of the costs incurred by the respondent mother in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of section 8 of the

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: Winter & Winter [2008] FamCAFC 159
Case: [2008] FamCAFC 159
Decision Date: 27 October 2008

CaseChat Overview and Summary

In Winter & Winter, the Full Court of the Family Court of Australia was called upon to review decisions made in a case concerning the care and custody of a child. The appellant, the father, challenged several orders issued by Justice O’Ryan in a previous hearing, which had largely favoured the respondent, the mother. The key issues before the court involved the interpretation of the best interests of the child under the Family Law Act 1975, as well as the procedural fairness of the original trial.

The court identified several legal issues that required resolution. These included whether Justice O’Ryan had erred in his assessment of the child's best interests, particularly in relation to the child's living arrangements and the allocation of parental responsibilities. Additionally, the court considered whether the trial judge had properly applied the principles of procedural fairness, given the father's allegations of bias and procedural impropriety during the original hearing.

In its reasoning, the Full Court found that Justice O’Ryan had indeed made errors in his assessment of the child's best interests and in his handling of the procedural aspects of the case. The court held that the original orders were not in line with the statutory framework for determining the best interests of the child, and that there were significant procedural irregularities that warranted a rehearing of the matter. Consequently, the appeal was allowed, and the original orders were set aside. The court also directed that the matter be remitted for rehearing before a different judge to ensure impartiality.

The court's final orders included allowing the appeal, setting aside certain orders made by Justice O’Ryan, remitting the matter for rehearing before a different judge, and granting costs certificates to both parties in respect of the appeal and any new trial. These orders reflect the court's determination to ensure that the child's best interests are properly considered and that the legal process is conducted fairly.

Orders

Orders of the court

That the appeal is allowed.

That orders 2, 5, 7, 10, 11 and 12 made by the Honourable Justice O’Ryan on 6 June 2008 are set aside.

That the matter is remitted for rehearing before a judge other than the Honourable Justice O’Ryan.

That the Court grants to the appellant father 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 father in respect of the costs incurred by the appellant father in relation to the appeal.

That the Court grants to the respondent mother a costs certificate pursuant to the provision 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 mother in respect of the costs incurred by the respondent mother in relation to the appeal.

That the Court grants to each party 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 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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