Tarrant & Buttler [2022] FedCFamC2F 413 (1 April 2022) Family Law Matter 2, Part B
Headnote
This was a continuation of the abovementioned family law and parenting matter which, in this instance, was held in the Federal Circuit and Family Court of Australia (Division 2). The Court recognised the need to consider the best interests of the Children as the paramount factor and ultimately ordered for the Children to live with their Mother who had relocated to Melbourne and for the Father to also relocate to Melbourne where he could also spend equal time with the Children.
Catchwords
FAMILY LAW – PARENTING – relocation – best interests of the child – where the father applies to move Children to Queensland – where the Mother lives in Melbourne, Victoria – where one of the Children has special needs – where there is no unacceptable risk posed by either parent – reasonably practicable for father to relocate to Melbourne
PROPERTY – de-facto relationship – property division – superannuation splitting – what is just and equitable
Background
The background facts of the matter are largely the same as noted above.
The Court essentially examined whether or not both parents should relocate to Melbourne, where the Mother had relocated to following the separation, or to Ipswich with their Father.
Substance of Matter and Key Arguments:
In making orders for the best interests of the children, the Court referred to key considerations listed in s60CC of the Family Law Act 1975 (Cth) (the Act), including the need for a meaningful relationship with both parents, protection from physical or psychological harm, and the Children’s emotional and intellectual needs.
The Applicant Father proposed that the children move with him to Ipswich, where he was posted for his military career. He also stated that, in the past, the Mother had required assistance in her parenting responsibilities towards the Children, which the Court rejected.
The Mother submitted that the Father’s proposed move to Ipswich would prevent a meaningful relationship between her and the Children, as she does not have the financial means to fund regular trips to Queensland.
Outcome
The Court ultimately ruled largely in favour of the Mother.
It held that it would only be reasonable and in the interests of stability of the Children for the Father to relocate to Melbourne to be near the Mother and their Children, and for both parents to spend equal time with the Children.
Moreover, the Court found that if the Father relocated to Ipswich, he could then be redeployed elsewhere (such as Darwin) again soon, which could only create further instability for the Children. The Court rejected the notion that the Father would be unable to find full-time work in Melbourne, and that he should relocate there to spend equal time with the Children.
Family Law Matter 2, Part C
Headnotes
This was an appeal from the previous judgment above, which took place in the Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction. The Applicant/Father strongly criticised the previous judgment made by the primary Judge and sought to overturn the ruling. The Court, however, rejected this and stated that the Notice for Appeal was lodged after the required due date and that, in any event, there was no substantial issue to be raised upon appeal.
Catchwords
FAMILY LAW – Application in an Appeal – extension of time to file a Notice of Appeal – ex tempore reasons delivered by primary Judge – unfounded criticism of primary Judge rejected – principles to be applied – substantial issues to be raised upon appeal – contention that ex tempore reasons differ from written judgment – no evidence provided – contention cannot be sustained – adequacy of reasons – contentions not particularised and cannot be sustained – no substantial issue to be raised upon Appeal – Application in an Appeal must be dismissed – no explanation for delay – fixed costs order made
Background
The background facts of the matter are largely the same as noted above.
This matter concerned the previous ex tempore judgment of the Primary Judge, which was criticised by the Applicant Father and his counsel for being ‘rambling, unstructured and repetitive’.
The other key issue was that the time for the Applicant Father to file an appeal started from the date the previous Order was made, however, the Primary Judge noted that in this case that time for appeal could start when the Father received a transcript of the oral published reasons.
The written reasons for the judgment were issued on 13 May 2022. The Father received the written transcript on 17 May 2022.
On 14 June 2022, the Applicant Father sent his Appeal incorrectly to the Brisbane Registry, which notified him of this and copied in the Sydney Registry. In turn, the Sydney Registry notified the Applicant Father that they could not accept the filing as it was past the deadline of 4:30pm on Friday 10 June.
Registry Sydney explained that, even if the Father received the transcript on 17 May, the Notice of Appeal would have had to been filed by 4:30pm on 14 June, which it had not. Moreover, it reaffirmed that the Notice of Appeal could not be accepted for filling as it was defective.
The Applicant filed an appeal on 16 June 2022.
Substance of Matter and Key Arguments
The Court referred to s13.02(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘Family Law Rules 2021’) which states that Notice for Appeal must be filed 28 days after the original Order was made.
It held that the date of the original Order was 13 May, although it recognised that the alternative date of 17 May could be used when the Father received the written transcript.
In any event, as the Notice for Appeal was past the deadline, the Court noted that an extension of time to file an Appeal could only be made, according to Gallo v Dawson (1990) HCA 30 if necessary to ‘do justice between the parties’. Likewise, the key issue in granting a time extension for an appeal is ‘whether there is a substantial issue to be raised upon appeal’ and, if not, the application for time extension and the Appeal itself ‘cannot proceed and must fail’. Other key considerations are the ‘reasonableness of explanations for delay’ and any according ‘hardship or prejudice’ that would result.
In House v The King (1936) 55 CLR 499 HCA, it stipulated that, to grant a time extension, there must be ‘an actual error that must be reviewed’ and an ‘unreasonable and plainly unjust’ outcome.
Outcome
The Court ruled in favour of the Mother, and examined the grounds of appeal that were made by the Applicant Father and counsel.
It rejected the first ground of appeal from the Applicant Father that the Primary Judge was repetitive and failed to properly analyse evidence, stating that this ground did not adequately specify any factual dispute that the Primary Judge did not resolve and that the ground was largely without merit.
The Court also rejected the second and third grounds of appeal, noting that they were convoluted and difficult to decipher, and simply restated the first ground.
Ultimately, the Court clearly held that all grounds of appeal failed and were ‘devoid of merit’, and that it could not grant an extension of time to file the Notice of Appeal.
Lastly, the Court ruled that the Applicant should pay the costs of the Respondent.
Voice Lawyers represented the mother in this relocation case at interim defended hearing, at a final hearing and in the Federal Circuit and Family Court of Australia Appeal division and obtained subsequent costs orders for the Mother.