Ulster & Viney

[2016] FamCAFC 133

FAMILY COURT OF AUSTRALIA

ULSTER & VINEY [2016] FamCAFC 133

FAMILY LAW – APPEAL – CHILDREN –Where the father appeals against final parenting orders which permit the mother to relocate the children from Melbourne to regional Victoria – Where the grounds of appeal challenge the exercise of discretion and weight given to various factors – Whether the primary judge erred in her consideration of s 65DAA and “substantial and significant time” – Meaning of “daily routine” discussed – Where the primary judge did not err in the exercise of her discretion – No error established – Appeal dismissed.

FAMILY LAW – COSTS – Where the mother sought costs in the event the appeal failed – Where the father was wholly unsuccessful on appeal – Where justifying circumstances exist for order for costs in favour of mother – Father to pay the mother’s costs of the appeal.

Family Law Act 1975 (Cth): ss 60CC, 61DA, 65DAA, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Beckham & Desprez [2015] FamCAFC 247
De Winter and De Winter (1979) FLC 90-605

Eddington and Eddington (No 2) (2007) FLC 93-349
French & Fetala [2014] FamCAFC 57
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
Heaton & Heaton [2012] FamCAFC 139
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115

APPELLANT: Mr Ulster

RESPONDENT: Ms Viney

FILE NUMBER: MLC 8852 of 2014

APPEAL NUMBER: SOA 74 of 2015

DATE DELIVERED: 28 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland,
Ainslie-Wallace & Ryan JJ

HEARING DATE: 3 March 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 October 2015

LOWER COURT MNC: [2015] FCCA 2749

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North SC

SOLICITOR FOR THE APPELLANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons Lawyers

Orders

1. The appeal be dismissed.

2. That the father pay the mother’s costs of and incidental to the appeal within twenty-eight (28) days of agreement as to quantum or assessment.

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 Ulster & Viney 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 74 of 2015
File Number: MLC 8852 of 2014

Mr Ulster

Appellant

And

Ms Viney

Respondent

REASONS FOR JUDGMENT

Strickland J

1. I have had the advantage of reading the draft judgment of Ainslie-Wallace and Ryan JJ.  Unfortunately, I…