Rogers - [2013] HCASL 99

FARMER

ROGERS
[2013] HCASL 99
B1/2013
B2/2013

By two applications, the applicant seeks special leave to appeal against orders of the Full Court of the Family Court of Australia (May, Ainslie‑Wallace and Murphy JJ) dismissing two appeals against decisions of the Federal Magistrates Court (Jarrett FM).
The applicant and the respondent are parents of a child born in 2008. They reside separately in Queensland and are unable to agree upon the parenting arrangements that should be put in place for their child.
On 29 November 2011, the Federal Magistrates Court made orders that, inter alia, the applicant and the respondent have equal shared parental responsibility for their child. The Federal Magistrate rejected the applicant's proposal to relocate and live with her child in Adelaide. The Federal Magistrate considered that the best interests of the child would be met if both of the child's parents continued to reside in Queensland.
On 17 April 2012, the Federal Magistrates Court made orders varying the days, but not the length of time, that the respondent could spend with his child.
On 7 December 2012, the Full Court unanimously dismissed two appeals brought by the applicant against the orders of the Federal Magistrate made on 29 November 2011 and 17 April 2012. The Full Court found that none of the applicant's grounds of appeal had been made out and that no errors were demonstrated in the Federal Magistrate's decisions.
As the applicant does not have legal representation, the applications fall to be dealt with under r 41.10 of the High Court Rules 2004.
There is no reason to doubt the correctness of the decision of the Full Court. An appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
26 June 2013

S.M. Crennan

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

Case: [2013] HCASL 99
Decision Date

CaseChat Overview and Summary

The case involved two applications by an applicant seeking special leave to appeal against orders made by the Full Court of the Family Court of Australia. The applicants and respondents are parents of a child born in 2008, who reside separately in Queensland and cannot agree on the parenting arrangements for their child. The Federal Magistrates Court had made orders that the applicants and respondents have equal shared parental responsibility for their child and rejected the applicant's proposal to relocate with her child to Adelaide. The Federal Magistrates Court also varied the days the respondent could spend with his child. The Full Court dismissed two appeals brought by the applicant against the orders made by the Federal Magistrate. The applicant, who does not have legal representation, sought special leave to appeal against the Full Court's orders.

The legal issues in the case were whether the Full Court's orders were correct and whether the applicant had demonstrated that an appeal would have sufficient prospects of success. The Full Court had found that none of the applicant's grounds of appeal had been made out and that no errors were demonstrated in the Federal Magistrate's decisions. The Full Court's decision was based on the principle that the best interests of the child are paramount in parenting arrangements. The court considered the applicant's proposal to relocate with her child to Adelaide and found that it would not be in the best interests of the child. The court also considered the varying of the days that the respondent could spend with his child and found that it was in the best interests of the child.

The High Court found that there was no reason to doubt the correctness of the Full Court's decision. The court held that an appeal to this Court would enjoy insufficient prospects of success to warrant a grant of special leave to appeal. The court considered the Full Court's findings and concluded that the applicant had not demonstrated that the Full Court's orders were incorrect or that an appeal would have sufficient prospects of success. The court noted that the Full Court had given careful consideration to the evidence and had made findings that were supported by the evidence. The court also noted that the applicant did not have legal representation and that the applications fell to be dealt with under rule 41.10 of the High Court Rules 2004.

The High Court dismissed the applications and directed the Registrar to draw up, sign and seal an order dismissing the application. The court held that the Full Court's orders were correct and that an appeal would not have sufficient prospects of success. The court also noted that the best interests of the child were paramount in parenting arrangements and that the Full Court had given careful consideration to the evidence and made findings that were supported by the evidence.

Orders