FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO (NO. 2) | [2015] FamCAFC 77 |
| FAMILY LAW – APPEAL – CHILDREN – Bests Interests of a Child – Where the appellant father was self-represented – Where the trial judge found that the child’s best interests are served by the child’s current living arrangements and place of residence – Where the appellant argues error in the exercise of the primary judge’s discretion – Where the appellant argues lack of procedural fairness and judicial bias –Where the appellant’s grounds of appeal and accompanying summary of argument is prolix and difficult to understand – Where the grounds of appeal and accompanying summary of argument raise no errors of law – Whether the trial judge erred in the exercise of discretion – Whether the trial judge failed to accord natural justice – Where the grounds of appeal and accompanying argument raise no appealable error – Appeal dismissed. FAMILY LAW – APPEAL – Application to adduce further evidence – Where the appellant filed five applications in an appeal to adduce further evidence – Where the appellant insisted that court recordings, rather than court transcript would better illustrate his case – Whether the fresh evidence should be adduced according to the principles in CDJ v VAJ (1998) CLR 172 – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Allesch v Maunz (2000) 203 CLR 172 Bartlett and Bartlett (1994) FLC 92-455 CDJ v VAJ (1998) 197 CLR 172 Forbes & Bream [2008] FamCAFC 189 Johnson v Johnson (2000) 201 CLR 488 Kioa v West (1985) 159 CLR 550 Neil v Nott (1994) ALR 148 Re F: Litigants in Person Guidelines (2001) FLC 93-072 SCAA v Minister for Immigration and Indigenous Affairs [2002] FCA 668 |
Stead v State Government Insurance Commission (1986) 161 CLR 141
| APPELLANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| INDEPENDENT CHILDREN'S LAWYER: | Jennifer Weate |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| APPEAL NUMBER: | EA | 15 | of | 2012 |
| DATE DELIVERED: | 7 May 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Murphy & Tree JJ |
| HEARING DATE: | 15 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 January 2012 |
| LOWER COURT MNC: | [2012] FamCA 11 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Autore |
| SOLICITOR FOR THE RESPONDENT: | Autore & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER : | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER : | Jennifer Weate & Associates |
Orders
Save to the extent of allowing the receipt of the further evidence comprising a portion of the audio recording of the hearing referred to in the reasons herewith, each of the five Applications in an Appeal filed by the appellant father on 30 June 2014; 30 June 2014; 27 July 2014; 19 August 2014 and 19 August 2014 is dismissed.
The appeal be dismissed.
The appellant father pay within 28 days of the date of these Orders the costs of the respondent mother of and incidental to this appeal in an amount agreed in writing between the parties or, failing agreement,…
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- Case
- [2015] FamCAFC 77
- Decision Date
CaseChat Overview and Summary
The court examined the father's arguments and found them to be without merit. The prolix and difficult-to-follow grounds of appeal did not present any legal errors or procedural failures on the part of the trial judge. The appeal raised no valid points of law or procedural irregularity, and the father's insistence on additional evidence did not meet the stringent criteria for admitting fresh evidence as outlined in CDJ v VAJ. Consequently, the appeal was dismissed, and the father was ordered to pay the costs of the respondent mother and the Independent Children's Lawyer within specified timeframes.
The court also addressed the father's multiple applications to adduce further evidence during the appeal, which he claimed would be better illustrated by audio recordings rather than court transcripts. The court held that these applications were without merit and did not meet the principles set out in CDJ v VAJ for admitting fresh evidence. Only one of the applications, concerning a specific portion of the audio recording from the hearing, was allowed, while the others were dismissed. The court reaffirmed the importance of adhering to the principles of natural justice and procedural fairness in family law proceedings, ensuring that appeals are not used to relitigate issues that have already been adequately considered by the trial judge.
Orders
Orders of the court
1.
Save to the extent of allowing the receipt of the further evidence comprising a portion of the audio recording of the hearing referred to in the reasons herewith, each of the five Applications in an Appeal filed by the appellant father on 30 June 2014; 30 June 2014; 27 July 2014; 19 August 2014 and 19 August 2014 is dismissed.
2.
The appeal be dismissed.
3.
The appellant father pay within 28 days of the date of these Orders the costs of the respondent mother of and incidental to this appeal in an amount agreed in writing between the parties or, failing agreement, in such amount as is assessed.
4.
The appellant father pay within 28 days of the date of these Orders the costs of the Independent Children’s Lawyer of and incidental to this appeal fixed in the sum of $4,000 including GST.
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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