PEMBROKE & HERON - [2015] FamCAFC 55

FAMILY COURT OF AUSTRALIA

PEMBROKE & HERON

[2015] FamCAFC 55

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Where the father 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 94(2D)
Family Law Rules 2004 r 12.10A

Babeu & Aamot [2015] FamCAFC 8

APPELLANT:

Mr Pembroke

RESPONDENT:

Ms Heron

FILE NUMBER:

SYC

4058

2014

APPEAL NUMBER:

2015

DATE DELIVERED:

14 April 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

31 March 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

9 February 2015

LOWER COURT MNC:

[2015] FamCA 120

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Ms Warda of Mills Oakley Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Adams of Hamish Cumming Family Lawyers

Orders

The application for expedition of the appeal against the orders of Johnston J made on 9 February 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pembroke & Heron 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 34 of 2015
File Number: SYC 4058 of 2014

Mr Pembroke

Appellant

and

Ms Heron

Respondent

REASONS FOR JUDGMENT

On 9 February 2015 Johnston J made interim parenting orders in proceedings between Mr Pembroke (“the father”) and Ms Heron (“the mother”) relating to their son B Heron Pembroke who was born in 2013.
His Honour’s orders concern the time that the child spends with the father.
The father appealed those orders and seeks by this application that the hearing of the appeal be expedited.
Some brief background to the matter is useful to give context to the application and is taken from his Honour’s reasons.
The parties began to live together in December 2012 and separated in

January 2014 when the child was but five months old. During their cohabitation, the parties lived in G Town in NSW. Very shortly after the separation, the mother moved to E Town, some distance away and although the father’s employment caused him to move to D Town, there is still a distance between the parties. The father contended that prior to separation he spent considerable time with the child but that the separation and the distance between the parties makes the development of the relationship with the child difficult. His Honour found that the move did adversely affect the father’s relationship with the child.
In July 2014, shortly after the parties separated, they entered into consent orders which provided for the father and child to spend time together with the time to be supervised by the paternal grandparents. These arrangements broke down and culminated in the father bringing…

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.

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Details

AGLC: PEMBROKE & HERON [2015] FamCAFC 55
Case: [2015] FamCAFC 55
Decision Date: 14 April 2015

CaseChat Overview and Summary

The matter before the court involved Pembroke & Heron, with an application to expedite an appeal against the orders made by Johnston J on 9 February 2015. The application sought to fast-track the appeal process, presumably due to the urgency or significance of the matters in dispute. The court was tasked with determining whether the application should be granted or dismissed.

The central legal issues the court had to address were whether the application for expedition met the criteria required to warrant an expedited appeal. This involved assessing the merits and urgency of the appeal, as well as the potential impact on the parties if the appeal was not expedited. The court needed to balance the interests of the parties and the broader considerations of judicial efficiency and fairness.

The court considered the application carefully, evaluating the arguments presented regarding the urgency and importance of the appeal. Ultimately, the court found that the application did not meet the necessary threshold to warrant an expedited appeal. The court was satisfied that the standard appeal process was sufficient to address the issues raised in a fair and timely manner. Consequently, the application for expedition was dismissed. The court's decision reflects a cautious approach to expediting appeals, ensuring that such requests are justified by compelling circumstances.

Orders

Orders of the court

The application for expedition of the appeal against the orders of Johnston J made on 9 February 2015 be dismissed.

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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