Dutnall and Rallin (No. 2) - [2020] FamCAFC 295

FAMILY COURT OF AUSTRALIA

DUTNALL & RALLIN (NO. 2)

[2020] FamCAFC 295

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PRACTICE AND PROCEDURE – Subpoena – Notice of Objection – Where the primary judge upheld the respondent’s Notice of Objection to a subpoena issued to the child’s high school by the applicant – Where there is no doubt as to the correctness of the primary judge’s decision – Where no substantial injustice would result if leave to appeal is not granted – Application for leave to appeal dismissed – Applicant to pay the respondent and the Independent Children’s Lawyer’s costs in fixed sums.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the documents sought to be adduced could not show any error on the part of the primary judge – Application dismissed.

Family Law Act 1975 (Cth) ss 4(1), 94AAA(3), 117(2A)

Family Law Regulations 1984 (Cth) reg 15A(2)

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Dutnall & Rallin [2020] FamCAFC 265
Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038; [2000] FamCA 892
Lenova & Lenova (Costs) [2011] FamCAFC 141
Lietzau & Lietzau [2020] FamCAFC 149
Malloy and Anor & Stopford Malloy [2017] FamCAFC 205
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
National Employers’ Mutual General Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Robeck & Robeck [2018] FamCAFC 201
Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

APPLICANT:

Mr Dutnall

RESPONDENT:

Ms Rallin

INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

FILE NUMBER:

SYC

3232

2016

APPEAL NUMBER:

EAA

110

2020

DATE DELIVERED:

26 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

17 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 July 2020

LOWER COURT MNC:

[2020] FCCA 2257

REPRESENTATION

THE APPLICANT:

Self-represented litigant (by video link)

SOLICITOR FOR THE RESPONDENT:

Sexton Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

John Spence & Associates

Orders

The application for leave to appeal from the orders of a judge of the Federal Circuit Court of Australia made on 6 July 2020 is dismissed.
The Application in an Appeal to adduce further evidence filed on 12 October 2020 is dismissed.
The applicant pay the respondent’s costs fixed in the sum of $1,863.60 and the Independent Children’s Lawyer’s costs fixed in the sum of $2,001.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dutnall & Rallin (No. 2) has been approved by the Chief Justice pursuant…

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: [2020] FamCAFC 295
Decision Date: 26 November 2020

CaseChat Overview and Summary

In Dutnall and Rallin (No. 2), the matter involved an appeal against the orders of a judge of the Federal Circuit Court of Australia made on 6 July 2020. The applicant sought leave to appeal these orders, which upheld a Notice of Objection by the respondent to a subpoena issued to the child’s high school. The primary issue before the court was whether the primary judge's decision was correct and if granting leave to appeal would result in any substantial injustice. The court was also tasked with deciding whether the application to adduce further evidence in the appeal could be successful.

The court examined the arguments presented regarding the subpoena and the Notice of Objection. It concluded that there was no doubt as to the correctness of the primary judge's decision, and granting leave to appeal would not result in any substantial injustice. The court also considered the application to adduce further evidence, ruling that the documents sought could not demonstrate any error on the part of the primary judge. Consequently, the application for leave to appeal was dismissed, and the application to adduce further evidence was also dismissed.

As a result of the dismissals, the applicant was ordered to pay the respondent’s costs fixed in the sum of $1,863.60 and the Independent Children’s Lawyer’s costs fixed in the sum of $2,001. The form of the order is subject to the entry of the order in the Court’s records. This decision highlights the importance of ensuring that the objections and evidence presented align with the legal standards set by the court, and it underscores the court's discretion in granting leave to appeal and permitting additional evidence.

Orders

Orders of the court

The application for leave to appeal from the orders of a judge of the Federal Circuit Court of Australia made on 6 July 2020 is dismissed.

The Application in an Appeal to adduce further evidence filed on 12 October 2020 is dismissed.

The applicant pay the respondent’s costs fixed in the sum of $1,863.60 and the Independent Children’s Lawyer’s costs fixed in the sum of $2,001.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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