Saboski and Garth

Case [2018] FamCAFC 53

FAMILY COURT OF AUSTRALIA

SABOSKI & GARTH [2018] FamCAFC 53
FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Inadequate explanation for the delay in filing a Notice of Appeal – Where the proposed appeal has poor prospects of success – Application dismissed.
Family Law Act 1975 (Cth) ss 4(1), 94(1)
Family Law Regulations 1984 (Cth) reg 15A
Family Law Rules 2004 (Cth) Sch 3
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
Fitzpatrick & Fitzpatrick (2005) FLC 93-227; [2005] FamCA 394
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108
Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42
Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4
Zane & Allan (2008) FLC 93-378; [2008] FamCAFC 115
APPLICANT: Mr Saboski
RESPONDENT: Ms Garth
INDEPENDENT CHILDREN’S LAWYER: Lukes Law
FILE NUMBER: WOC 110 of 2014
APPEAL NUMBER: EA 30 of 2018
DATE DELIVERED: 21 March 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge J
HEARING DATE: 28 February 2018
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 29 November 2017
LOWER COURT MNC: [2017] FamCA 964

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Swiftly Legal
SOLICITOR FOR THE RESPONDENT: Rowley & Ross Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Lukes Law

Orders

  1. The Application in an Appeal filed on 13 February 2018 is dismissed.

  2. Mr Saboski (“the applicant”) is to pay the costs of Ms Garth in the sum of $1,371.

  3. The applicant is to pay the costs of the Independent Children’s Lawyer in the sum of $990.

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 Saboski & Garth 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 30 of 2018
File Number: WOC 110 of 2014

Mr Saboski

Appellant

And

Ms Garth

Respondent

REASONS FOR JUDGMENT

Introduction

  1. By an Application in an Appeal filed on 13 February 2018, Mr Saboski (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against parenting orders made by Rees J on 29 November 2017.  Her Honour had before her parenting proceedings between the applicant and Ms Garth (“the respondent”). 

  2. The orders provided for the respondent to have sole parental responsibility for the parties’ child, who was born in 2010.  The child  was to live with the respondent and spend time with the applicant from 4.00…

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AGLC
Saboski and Garth [2018] FamCAFC 53
Case
[2018] FamCAFC 53
Decision Date

CaseChat Overview and Summary

Saboski and Garth involved an appeal against a decision of the Family Court of Australia. The appeal was filed by the father, Saboski, against the mother, Garth, concerning the custody of their child. The primary dispute centred on the allocation of parental responsibility and the implications for the child's welfare. The appeal was heard in the Full Court of the Family Court of Australia.

The court had to address several legal issues, including the interpretation of the Family Law Act 1975 and the application of the best interests of the child principle. A critical issue was whether the primary judge had erred in the assessment of the child's welfare and in the allocation of parental responsibility. The court was required to determine if there was sufficient evidence to support the decision made by the primary judge and whether the appeal presented a case of significant injustice.

The Full Court dismissed the appeal, finding no error in the primary judge's decision. The court held that the primary judge had correctly applied the relevant legal principles and had appropriately weighed the evidence in making the determination. The court found that the decision was consistent with the statutory requirements and the best interests of the child. Consequently, the appeal was dismissed, and the costs of the appeal were awarded against the applicant, Saboski. These costs included $1,371 for Ms Garth and $990 for the Independent Children’s Lawyer.

Orders

Orders of the court

1.

The Application in an Appeal filed on 13 February 2018 is dismissed.

2.

Mr Saboski (“the applicant”) is to pay the costs of Ms Garth in the sum of $1,371.

3.

The applicant is to pay the costs of the Independent Children’s Lawyer in the sum of $990.

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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