Ericsson and Jarrold (No. 2) - [2020] FamCAFC 299

FAMILY COURT OF AUSTRALIA

ERICSSON & JARROLD (NO. 2)

[2020] FamCAFC 299

FAMILY LAW – APPEAL – CONTRAVENTION – Where in dismissing his contravention application the appellant asserts that the primary judge did not provide adequate reasons – Where the primary judge has provided adequate reasons and the pathway to the decision is entirely transparent – Where there is no merit in this aspect of the appeal and it must be dismissed.

FAMILY LAW – APPEAL – PARENTING – Where the application to vary previous parenting orders was dismissed pursuant to the principle in Rice and Asplund (1979) FLC 90-725 – Where there is no denial of procedural fairness – Where there is no lack of adequate reasons – Where having found no sufficient change of circumstances there was no basis to order a family report – Where the primary judge has not erred – Where there is no merit in any of the grounds of appeal and this aspect of the appeal must be dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the respondent seeks dismissal of this application – Where there is plainly an issue of admissibility in relation to the evidence sought to be adduced and it is clear that it is controversial – Where the evidence post-dates the hearing before the primary judge by substantial periods of time and does not satisfy the test propounded in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in the event that the appeal was dismissed – Costs to be dealt with separately.

Family Law Act 1975 (Cth) s 93A(2)

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SPS & PLS (2008) LFC 93-363; [2008] FamCAFC 119

APPELLANT:

Mr Ericsson

RESPONDENT:

Ms Jarrold

FILE NUMBER:

DGC

1317

2013

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

2 December 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide by video link

JUDGMENT OF:

Strickland J

HEARING DATE:

4 August 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATES:

8 November 2019

LOWER COURT MNC:

[2019] FCCA 3201
[2019] FCCA 3202

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL-ADVOCATE FOR

THE RESPONDENT:

Mr Rockman

SOLICITOR FOR THE RESPONDENT:

Rockman & Rockman Lawyers

Orders

The Application in an Appeal filed on 14 July 2020 be dismissed.
Appeal no. SOA 73 of 2019 be dismissed.

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 Ericsson & Jarrold (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the

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.

Continue reading Ericsson and Jarrold (No. 2)

Details

AGLC: Ericsson and Jarrold (No. 2) [2020] FamCAFC 299
Case: [2020] FamCAFC 299
Decision Date: 2 December 2020

CaseChat Overview and Summary

The appeal, Ericsson and Jarrold (No. 2), arose from a family law matter concerning a contravention application and an application to vary parenting orders. The appeal was brought before the court by the appellant, who sought to challenge the decisions made by the primary judge. The respondent opposed the appeal, arguing that the primary judge's decisions were sound and that the appeal lacked merit.

The central legal issues the court had to address were whether the primary judge provided adequate reasons for dismissing the contravention application and whether there was a sufficient change in circumstances to warrant varying the parenting orders. Additionally, the court had to consider the admissibility of new evidence proposed by the appellant and the issue of costs in the event of the appeal being dismissed.

In dismissing the appeal, the court found that the primary judge had provided adequate reasons for dismissing the contravention application, and the pathway to the decision was transparent. The court also determined that there was no procedural unfairness or lack of adequate reasons in the primary judge's dismissal of the application to vary parenting orders. Furthermore, the court held that the proposed new evidence was inadmissible because it post-dated the primary hearing by substantial periods of time and did not satisfy the relevant legal tests. Lastly, the court noted that the issue of costs would be dealt with separately.

The court dismissed the appeal and the application in an appeal, with the appeal being dismissed on all grounds. The form of the orders was subject to the entry of the order in the court's records.

Orders

Orders of the court

The Application in an Appeal filed on 14 July 2020 be dismissed.

Appeal no. SOA 73 of 2019 be dismissed.

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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