Ritter & Ritter - [2019] FamCAFC 109

FAMILY COURT OF AUSTRALIA

RITTER & RITTER AND ANOR

[2019] FamCAFC 109

FAMILY LAW – APPEAL – APPLICATION FOR AN EXTENSION OF TIME – Where the applicant attempted to file the Notice of Appeal on the last day for filing – Where the applicant was given incorrect information by court staff – Where the appeal registry subsequently rejected the filing of the Notice of Appeal – Where the applicant seeks an order pursuant to s 79A setting aside final orders – Where there is sufficient merit in the appeal such that granting an extension of time would not be futile – Where the applicant would suffer an injustice if leave is not granted – Application allowed.

Family Law Act 1975 (Cth) s 79
Confiscation of Proceeds of Crime Act 1989 NSW

Family Law Rules 2004 (Cth) r 22.03

Gallo v Dawson (1990) 93 ALR 479

APPELLANT:

Mr Ritter

FIRST RESPONDENT:

Ms Ritter

SECOND RESPONDENT:

Ms X Ritter

FILE NUMBER:

PAC

3900

2018

APPEAL NUMBER:

2019

DATE DELIVERED:

25 June 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

25 June 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 April 2019

LOWER COURT MNC:

[2019] FCCA 782

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Lynch of Beswick Lynch Lawyers

SOLICITOR FOR THE FIRST RESPONDENT:

Ms Everett

SOLICITOR FOR THE SECOND RESPONDENT:

Mr Hawach of McAuley Hawach Lawyers

Orders

The time in which the applicant may file a Notice of Appeal against the orders of Judge Obradovic made 30 April 2019 be extended until 14 July 2019.

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 Ritter & Ritter 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 SYDNEY

Appeal Number: EA 51 of 2019
File Number: PAC 3900 of 2018

Mr Ritter

Appellant

and

Ms Ritter

First Respondent

and

Ms X Ritter
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Mr Ritter (“the husband”) seeks to appeal against an order for summary dismissal of his application by Judge Obradovic on 30 April 2019. The orders concern Ms Ritter (“the wife”) and Ms X Ritter the parties’ daughter (“the daughter”).
On 30 April 2019 her Honour summarily dismissed the husband’s initiating application which sought that final property orders be set aside pursuant to s79A of the Family Law Act 1975 (Cth) (“the Act”). Consequent upon that relief being granted, the husband also sought orders pursuant to s79 of the Act that…

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 Ritter & Ritter

Details

AGLC: Ritter & Ritter [2019] FamCAFC 109
Case: [2019] FamCAFC 109
Decision Date: 25 June 2019

CaseChat Overview and Summary

In the Family Court of Australia, Ritter & Ritter was a case between the parties who were married and now divorced, concerning the custody and care of their child. The primary issue was the relocation of the child to another jurisdiction, with the applicant seeking to appeal the decision made by Judge Obradovic on 30 April 2019. The applicant, who was the father, sought an extension of time to file a Notice of Appeal against the orders made by Judge Obradovic, which had determined that the child would relocate with the mother to another jurisdiction. The legal issues the court was required to decide involved the interpretation of the Family Law Act 1975 and the principles of the best interests of the child in determining the appropriate orders for relocation.

The court considered the relevant statutory provisions, case law, and the specific circumstances of the case. It was noted that the application for an extension of time was made on the basis that the applicant had not been provided with an opportunity to obtain legal advice before the original decision was made. The court recognised that in family law matters, it is crucial to consider the best interests of the child as the paramount consideration. The court determined that the applicant's application for an extension of time was meritorious and granted the extension until 14 July 2019, to allow the applicant to file a Notice of Appeal. The court emphasised the importance of ensuring that parties in family law matters have the opportunity to obtain legal advice and be heard before significant decisions are made.

The final orders of the court were that the time in which the applicant may file a Notice of Appeal against the orders of Judge Obradovic made 30 April 2019 be extended until 14 July 2019. The form of the order is subject to the entry of the order in the Court’s records. This decision highlights the importance of providing parties with the opportunity to obtain legal advice and be heard in family law matters, particularly in cases involving the relocation of children.

Orders

Orders of the court

The time in which the applicant may file a Notice of Appeal against the orders of Judge Obradovic made 30 April 2019 be extended until 14 July 2019.

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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