Collins and Ricardo (No 2) - [2015] FamCAFC 77

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

2009

APPEAL NUMBER:

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,…

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

Case: [2015] FamCAFC 77
Decision Date: 7 May 2015

CaseChat Overview and Summary

In Collins and Ricardo (No 2), the father, self-represented, appealed against a decision concerning the residence and care of his child. The trial judge had determined that the child's best interests were served by the current living arrangements and place of residence, a conclusion the father contested on multiple grounds. The father argued that the trial judge had erred in the exercise of discretion, failed to accord natural justice, and was possibly biased. The father also contended that the trial judge did not consider all relevant evidence, particularly emphasizing the need for audio recordings instead of court transcripts.

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

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, in such amount as is assessed.

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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