Father Disputes Parenting Orders
Soltani & Yassin [2022] FedCFamC1A 190 (18 November 2022)
The father's appeal was listed to clarify the nature and ambit of the appeal. It is uncertain which orders are the subject of challenge. In resolving this dispute, the Court considered that the parenting orders are not subject to any challenge.
Facts
On 10 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders to finally determine proceedings between the appellant father and the respondent mother in respect of their minor children and the adjustment of their property interests under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The father appealed from those orders by way of Notice of Appeal filed on 7 November 2022. The appeal was listed before the Court for further directions on 18 November 2022 to clarify its nature and ambit, given the incomprehensibility of the solitary ground of appeal and the uncertainty about the orders which are the subject of challenge.
The father asserts that the trial judge took into account a consideration that the Family Law Act 1975 (Cth) (Act) proscribes from consideration in adjusting the property interests of the parties in the marital asset pool. Construed in the most benevolent way, it appears to complain that the primary judge erred by taking into account an irrelevant consideration when determining the financial cause between the parties in the exercise of discretion under Pt VIII of the Act. The appellant confirmed that was the intended meaning of the ground. The ground of appeal should be re-pleaded to make that plain, as the respondent is entitled to know what case she needs to meet.
Issue
Whether or not the appeal should be granted.
Applicable law
Family Law Act 1975 (Cth) Pts VII, VIII - provides that the Court, in making parenting orders, should take into consideration the best interests of children.
Analysis
The appellant conceded the single ground of appeal attacks only the primary judge’s exercise of discretion under Pt VIII of the Act, which means the appeal concerns only the financial orders (Orders 16 and 17). The appellant applies for a remedial order in the appeal setting aside only Order 16(c), again implying the limitation of the appeal to only the financial cause. The parenting orders (Orders 1–15) are not the subject of any challenge, so the Independent Children’s Lawyer should not be joined to the appeal.
Conclusion
That part of the appeal which lies from Orders 1–15 inclusive made on 10 October 2022 is dismissed. The Independent Children’s Lawyer is discharged as a party to the appeal. The appellant shall file and serve an Amended Notice of Appeal in relation to Orders 16 and 17 made on 10 October 2022 within 14 days hereof, in default of which the remainder of the appeal is dismissed.
