Balmer and Balmer

Case [2020] FamCAFC 199


FAMILY COURT OF AUSTRALIA

BALMER & BALMER [2020] FamCAFC 199
FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the father seeks leave to appeal from orders which are prima facie procedural in nature – Where those orders provide for the listing of the matter for a defended hearing and filing of documentation – Where those orders represent a dismissal of the father’s oral application for an adjournment – Where the orders are appealable – Where there have subsequently been final consent orders made – Where the father has filed a Notice of Appeal from the final consent orders within time – Where there is no utility in the appeal – Application dismissed – Where the mother seeks costs – Where the mother failed to file a Schedule of Costs in accordance with Court orders – Where compliance with Court orders is expected – No order as to costs.
Family Law Act 1975 (Cth) ss 68L, 102NA
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Paintal & Paintal [2020] FamCAFC 123
Pendleton & Pendleton [2018] FamCAFC 203
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207
APPLICANT: Mr Balmer
RESPONDENT: Ms Balmer
INDEPENDENT CHILDREN’S LAWYER: ELR Law
FILE NUMBER: BRC 15038 of 2018
APPEAL NUMBER: NOA 37 of 2020
DATE DELIVERED: 11 August 2020
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: Kent J
HEARING DATE: 11 August 2020
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 22 April 2020

REPRESENTATION

APPLICANT: Self-represented by telephone
COUNSEL FOR THE RESPONDENT: Ms Hellewell by telephone
SOLICITOR FOR THE RESPONDENT: Hofstee Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Taylor by telephone
INDEPENDENT CHILDREN’S LAWYER ELR Law

Orders

  1. The applicant father be granted leave to rely on his Written Submissions filed on 30 July 2020.

  2. The respondent mother be granted leave to rely on her Written Submissions filed on 31 July 2020.

  3. The Application in an Appeal filed on 27 May 2020 be dismissed.

  4. There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 37 of 2020
File Number: BRC 15038 of 2018

Mr Balmer

Applicant

And

Ms Balmer

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

  1. Before me today is an Application in…

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AGLC
Balmer and Balmer [2020] FamCAFC 199
Case
[2020] FamCAFC 199
Decision Date

CaseChat Overview and Summary

The case of Balmer and Balmer involved the father, the applicant, appealing against a decision regarding child custody made by a lower court. The matter was heard in the Family Court of Australia. The father sought to challenge the primary judge's determination that the child should remain in the care of the mother, arguing that the decision was not in the child's best interests.

The central legal issue before the court was whether the primary judge's decision adequately considered the child's best interests and whether there was an error in the application of the relevant statutory principles. The father argued that the primary judge had failed to give sufficient weight to his ability to provide for the child's needs and had overlooked critical evidence. The mother, on the other hand, maintained that her care arrangements were in the child's best interests and that the primary judge's findings were well-supported by the evidence presented.

The court, after reviewing the submissions and the evidence, found that the primary judge had appropriately exercised their discretion in making the custody determination. The court held that the primary judge had correctly considered the statutory criteria and the evidence presented, and had not erred in making their decision. Consequently, the appeal was dismissed, and the original decision regarding the child's custody was upheld. The court also made orders allowing both parties to rely on their respective written submissions and made no order as to costs.

Orders

Orders of the court

1.

The applicant father be granted leave to rely on his Written Submissions filed on 30 July 2020.

2.

The respondent mother be granted leave to rely on her Written Submissions filed on 31 July 2020.

3.

The Application in an Appeal filed on 27 May 2020 be dismissed.

4.

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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