PALMER & HAMMER - [2011] FamCAFC 48

FAMILY COURT OF AUSTRALIA

PALMER & HAMMER

[2011] FamCAFC 48

FAMILY LAW - APPEAL – CHILDREN – Relocation – Where the Federal Magistrate allowed the mother to relocate the child’s primary place of residence – Where the father’s time with the child was limited due to the geographical distance between the parent’s homes – Where it was said the best interests of the child would be best met in the mother’s care and where the mother had support, permanent employment and where the mother was able to attend to her sick mother – Where it was considered the father’s relationship with the child could be sustained.

FAMILY LAW - APPEAL – Application to extend time to appeal – Where the father’s solicitors attempted to file a notice of appeal in the incorrect registry on the last day for filing within time – Where the notice of appeal was not accepted for filing – Delay adequately explained – Leave opposed by the mother – Where the only prejudice to the mother is inconvenience and the possible costs of an appeal – Where dismissal of the father’s application would prevent him from appealing the orders – Where the father would be prejudiced – Where there are considerable arguments to be made on appeal – Application allowed.

FAMILY LAW - APPEAL – Application for expedition – Where there has been a radical change in the parenting arrangements of the child – Where there are significant costs to the father in facilitating spending time with the child – Appeal expedited.

FAMILY LAW - COSTS – Reserved to the Full Court.

Family Law Act 1975 (Cth)

Clivery & Conway [2007] FamCA 1435
Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Palmer

RESPONDENT:

Ms Hammer

FILE NUMBER:

NCC

1669

2007

APPEAL NUMBER:

2011

DATE DELIVERED:

10 March 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

10 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

17 January 2011

LOWER COURT MNC:

[2011] FMCAfam 14

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dura

SOLICITOR FOR THE APPELLANT:

Rice More & Gibson Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Bridge Street Lawyers

Orders

The father have leave to file a notice of appeal on or before 4pm Monday, 14 March 2011.
The hearing of the appeal be expedited.

IT IS ORDERED BY CONSENT:-

That the parties’ costs of and incidental to the applications be reserved to the Full Court.

IT IS NOTED that publication of this judgment under the pseudonym Palmer v Hammer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 10 of 2011
File Number: NCC 1669 of 2007

Mr Palmer

Appellant

And

Ms Hammer

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

Two applications were filed by the father in this matter on 18 February 2011. The first is an application…

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 PALMER & HAMMER

Details

AGLC: PALMER & HAMMER [2011] FamCAFC 48
Case: [2011] FamCAFC 48
Decision Date: 10 March 2011

CaseChat Overview and Summary

The case of Palmer & Hammer involved an appeal by the father against a decision that allowed the mother to relocate the child’s primary place of residence. The Federal Magistrate had ruled in favour of the mother, considering it in the child's best interest, taking into account the mother's support network, permanent employment, and ability to care for her sick mother, as well as the potential for the father to sustain his relationship with the child despite the geographical distance. The father contested the decision on the basis that it adversely affected his limited time with the child.

The legal issues before the court were threefold. Firstly, whether the Federal Magistrate's decision to permit the relocation was in the child's best interest. Secondly, whether the father should be granted leave to appeal despite his solicitors filing the notice of appeal in the incorrect registry. Lastly, whether the appeal should be expedited due to the significant changes in the child's parenting arrangements and the associated costs for the father.

The court allowed the father leave to file a notice of appeal, noting that the delay was adequately explained and that dismissing the application would prevent him from appealing the orders, resulting in significant prejudice. The court also expedited the hearing of the appeal due to the radical change in parenting arrangements and the considerable costs involved for the father. The court reserved the issue of costs to the Full Court.

In summary, the court granted the father leave to file a notice of appeal by a specific date and expedited the appeal hearing. The costs were reserved for determination by the Full Court.

Orders

Orders of the court

The father have leave to file a notice of appeal on or before 4pm Monday, 14 March 2011.

The hearing of the appeal be expedited.

IT IS ORDERED BY CONSENT:-

That the parties’ costs of and incidental to the applications be reserved to the Full Court.

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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