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
The Application in an Appeal filed on 13 February 2018 is dismissed.
Mr Saboski (“the applicant”) is to pay the costs of Ms Garth in the sum of $1,371.
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
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”).
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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- Saboski and Garth [2018] FamCAFC 53
- Case
- [2018] FamCAFC 53
- Decision Date
CaseChat Overview and Summary
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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