BABEU & AAMOT - [2015] FamCAFC 8

FAMILY COURT OF AUSTRALIA

BABEU & AAMOT

[2015] FamCAFC 8

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the mother seeks to expedite an appeal against interim parenting orders – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth): s 92(2D)

Family Law Rules 2004: r 12.10A

APPLICANT:

Ms Babeu

RESPONDENT:

Mr Aamot

FILE NUMBER:

NCC

2104

2014

APPEAL NUMBER:

2015

ORDERS MADE:

DATE DELIVERED:

29 January 2015

3 February 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

29 January 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

22 December 2014

LOWER COURT MNC:

[2014] FCCA 3066

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Page QC by telephone

SOLICITOR FOR THE APPLICANT:

Burke & Mead Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr Dowd

Watts McCray Lawyers

Orders made 29 january 2015

That the Application in an Appeal filed 20 January 2015 be dismissed.
The costs of this application to be the costs in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babeu & Aamot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 2 of 2015
File Number: NCC 2104 of 2014

Ms Babeu

Applicant

And

Mr Aamot

Respondent

REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 20 January 2015, Ms Babeu (“the mother”) seeks an expedited hearing of her appeal against interim parenting orders made by Judge Myers on 22 December 2014.
The parenting proceedings concern the parties’ three children, M who was born in 2006, A who was born in 2010 and J who was born in 2012.
In summary, the interim orders provide that J lives primarily with the mother and on four occasions each fortnight spends time during the day with her father and that the two eldest children’s time is divided equally between their parents.
Mr Aamot (“the father”) is the children’s father and the respondent to this application. Although he seeks to uphold the interim orders he supports the mother’s application for expedition.
I heard and dismissed the application for expedition on 29 January 2015. With the concurrence of the parties’ representatives I indicated I would provide my reasons at a later date. These are the reasons.

Background facts

In order to give this application context it is necessary to provide some background facts.
The parties married in 2002 and separated in 2014.
The mother is a professional who works approximately 12 hours per week. The father holds a full time academic post at a University and is also undertaking a PhD in his professional field.
The parties have three children, whose details have been set out…

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 BABEU & AAMOT

Details

AGLC: BABEU & AAMOT [2015] FamCAFC 8
Case: [2015] FamCAFC 8
Decision Date: 29 January 2015 3 February 2015

CaseChat Overview and Summary

In the Family Court of Australia, Ms Babeu sought to expedite an appeal against interim parenting orders made by the Federal Circuit Court. The orders in question provided that the youngest child would live primarily with Ms Babeu, spending time with the father on four occasions each fortnight. The two older children were to spend equal time with both parents. Mr Aamot, the father, supported the mother's application for expedition but sought to uphold the interim orders. The court needed to decide whether the mother's application for an expedited hearing of her appeal against the interim parenting orders should be granted.

The court found that while there were factors in favour of granting the application, such as the need to resolve the interim dispute at the earliest opportunity and the parties' agreement that the proceedings should be transferred to the Family Court in Newcastle for an earlier final hearing, there were also factors against granting the application. The magnitude of the dispute and the orders, as well as the availability of a final hearing much earlier than the one offered by the Federal Circuit Court, meant that the appeal did not require priority to the detriment of other cases regularly listed and awaiting allocation of a hearing before the Full Court in the normal course. The court also noted that the grounds of appeal did not impel the court to expedite the appeal.

In conclusion, the court dismissed the mother's application for expedition of her appeal. The court found that the application was finely balanced, but ultimately decided that the appeal should not be expedited. The costs of the application were to be the costs in the appeal.

Orders