Family Court: Errors of Law

Introduction

Where errors of law are made by a primary judge in the Federal Circuit Court of Australia, a party may appeal the decision in the Family Court of Australia.

Relevant Case Law

Errors of law were found to have occurred in Mareet & Colbrooke [2019] on appeal to the Full Court of the Family Court of Australia. The Mother had been pregnant with the child when she moved from the Northern Territory where the Father worked to Queensland going via “Town F” in New South Wales where her family resided.

Court Analysis

The primary judge had made interim orders. They included that the Mother return with the child to New South Wale. She was required to reside there “temporarily” at her mother’s home in Town F. The orders made also prevented the Mother from leaving the particular region in New South Wales until further order.

The Family Court found that the primary judge had regarded the matter as a relocation case. However, the Family Court noted that he child’s residence had never been in the particular region of New South Wales. The primary judge’s treatment of the issue as a relocation case led her to make significant errors of law.

Ainslie-Wallace J (the two other concerned judges agreeing) allowed the Mother’s appeal. She said:

“In particular, [the primary judge] gave no consideration to making order that the father travel to the D Region in Queensland to see the child.   Nor did she turn her mind to the interests of the mother’s older child who had been enrolled at preschool …in Queensland. Instead, her Honour too the view that the mother should be compelled to return.”

Orders

Errors of law were found in the order of the primary judge that the denied the mother’s right of freedom of movement from the particular region in New South Wales. The primary judge had not taken into account the financial and other burden on the mother involved in the move. This even though the move might anyway only be short term as the orders made were interim orders.

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