Balmer and Balmer - [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

2018

APPEAL NUMBER:

NOA

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

The applicant father be granted leave to rely on his Written Submissions filed on 30 July 2020.
The respondent mother be granted leave to rely on her Written Submissions filed on 31 July 2020.
The Application in an Appeal filed on 27 May 2020 be dismissed.
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

Before me today is an Application in…

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 Balmer and Balmer

Details

AGLC: Balmer and Balmer [2020] FamCAFC 199
Case: [2020] FamCAFC 199
Decision Date: 11 August 2020

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

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

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

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

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.