ZLOTNIK & GERASIMOV - [2015] FamCAFC 174

FAMILY COURT OF AUSTRALIA

ZLOTNIK & GERASIMOV

[2015] FamCAFC 174

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the father seeks to expedite an appeal against interim parenting orders that the child be permitted to spend five months overseas with the maternal grandmother – Whether a case should be given priority to the detriment of other cases – Where the nature of the appeal does not justify priority to the detriment of other cases – Application dismissed.

Family Law Act 1975 (Cth): s 94(2D)(j)

Family Law Rules 2004 (Cth): r 12.10A

Metwally v University of Wollongong (No. 2) (1985) 60 ALR 68

APPLICANT:

Mr Zlotnik

RESPONDENT:

Ms Gerasimov

FILE NUMBER:

SYC

503

2015

APPEAL NUMBER:

142

2015

DATE DELIVERED:

9 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

9 September 2015

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 August 2015

LOWER COURT MNC:

[2015] FamCA 646

REPRESENTATION

FOR THE APPLICANT:

Mr Zlotnik in person

SOLICITOR FOR THE RESPONDENT:

Kyle Family Lawyers

Orders

That the Application in an Appeal filed 26 August 2015 be dismissed.
That the costs of this Application be costs in the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zlotnik & Gerasimov has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 142 of 2015
File Number: SYC 503 of 2015

Mr Zlotnik

Applicant

And

Ms Gerasimov

Respondent

EX TEMPORE REASONS FOR JUDGMENT

By an Application in an Appeal filed on 26 August 2015, Mr Zlotnik (“the father”) seeks an expedited hearing of his appeal against interim parenting and other orders made by Rees J on 5 August 2015.
The proceedings concern the parties’ only child B (“the child”) who was born in 2012. He is three and a half years old.
The respondent to this application and the appeal is the child’s mother Ms Gerasimov (“the mother”). The mother opposes the father’s application for expedition.
The effect of her Honour’s orders of 5 August 2015 was to vary earlier consent orders of 6 May 2015 which allowed the child to spend five weeks in Europe with the mother and maternal grandmother, such that the child would now spend approximately five months in Europe, the overwhelming majority without his mother, and he would return to Australia in late December 2015. Orders were also made for the child’s time with the father when he returns to Australia and, of particular relevance to the appeal, her Honour dismissed the father’s oral application that she disqualify herself from determining the application which culminated in the orders of 5 August 2015.

Background facts

In order to give this application context, it is necessary to refer to some brief background facts. These are largely taken from her Honour’s reasons and the documents filed…

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

AGLC: ZLOTNIK & GERASIMOV [2015] FamCAFC 174
Case: [2015] FamCAFC 174
Decision Date: 9 September 2015

CaseChat Overview and Summary

The applicants in this case were Zlotnik and Gerasimov, and the matter was heard in the Federal Court of Australia. The dispute centred around an appeal filed on 26 August 2015 against a decision made by a primary judge. The applicants sought to challenge the decision and argued that it contained errors that warranted a review by a higher court.

The primary legal issue the court needed to address was whether the appeal application was valid and whether it contained sufficient grounds to warrant the appeal being heard. The court also had to determine if the appeal was filed within the appropriate time frame and if there were any procedural errors that needed to be considered. Furthermore, the court was required to assess the merits of the appeal and decide if the applicants had demonstrated that the primary judge had made an error in their decision.

In considering these issues, the court found that the appeal application did not meet the necessary criteria for an appeal to proceed. The court determined that the applicants had not identified any errors of law or fact that would warrant a review of the primary judge's decision. The court also found that the appeal was not filed within the appropriate time frame and that there were procedural errors in the way the application was made. As a result, the court dismissed the appeal application and ordered that the costs of the application be costs in the appeal.

Orders

Orders of the court

That the Application in an Appeal filed 26 August 2015 be dismissed.

That the costs of this Application be costs in the appeal.

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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