Astin & Harlow

[2008] FamCAFC 66

FAMILY COURT OF AUSTRALIA

ASTIN & HARLOW [2008] FamCAFC 66

FAMILY LAW - APPEAL – From decision of Family Court Judge – CHILDREN – With whom a child spends time – Consent orders – Contravention – The mother alleged  33  contraventions of the parenting orders – Mother also sought that she be granted leave to reopen virtually all parenting issues that had been resolved by consent – Trial Judge heard nine of the alleged contraventions and dismissed them –  The mother then consented to the dismissal of the balance of the allegations – Trial Judge dismissed the mother’s application for leave to reopen parenting issues – Mother appealed – Whether the mother suffered procedural unfairness – Whether the trial Judge erred in accepting into evidence a letter and whether he placed undue reliance on it – Whether, in refusing leave to re-open parenting issues, the trial Judge placed reliance on his recollections of evidence of a psychiatrist and social worker who had prepared reports in earlier litigation – Whether the trial Judge erred by not receiving into evidence contact centre notes – Whether the trial Judge did not have proper regard to the mother’s claims that she had been under duress when signing the consent orders – No error in the trial Judge’s treatment of the applications – Appeal dismissed

FAMILY LAW - APPEAL – Application for leave to adduce further evidence out of time – The mother did not show in what way the further evidence demonstrates, had it been before the trial Judge, that the orders, whether for dismissal of the contravention allegations or dismissal of the application for leave seeking to reopen the children’s issue, were erroneous or likely to be erroneous

Family Law Act 1975 (Cth), s 69ZT, s 117(2A)
Family Law Rules 2004, r 21.08

Rice and Asplund (1979) FLC 90-725

APPELLANT: MS ASTIN

RESPONDENT: MR HARLOW

APPEAL NUMBER: NA 76 of 2007

FILE NUMBER: BRF 9414 of 2000

DATE DELIVERED: 16 May 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Finn, Warnick & Murphy JJ

HEARING DATE: 4 March 2008

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 24 October 2007

LOWER COURT MNC: [2007] FamCA 1544

REPRESENTATION

APPELLANT: In person

RESPONDENT: In person

Orders

1. That the mother’s application for an extension of time within which to apply for leave to adduce further evidence be dismissed.

2. That the appeal be dismissed.

3. That the mother pay the father’s costs of and incidental to the appeal fixed in the sum of $1,700.00.

IT IS NOTED that publication of this judgment under the pseudonym Astin & Harlow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 76 of 2007

File Number: BRF 9414 of 2000

MS ASTIN

Appellant

And

MR HARLOW

Respondent

REASONS FOR JUDGMENT

1. The child of Ms Astin and Mr Harlow was born in March 1998.  For most of her life, her parents…