ERICSSON & JARROLD - [2020] FamCAFC 298

FAMILY COURT OF AUSTRALIA

ERICSSON & JARROLD

[2020] FamCAFC 298

FAMILY LAW – APPEAL – PARENTING – BIAS – Where the appellant complains of apprehended bias by the primary judge – Where no apprehended bias is demonstrated – Where none of the complaints made by the appellant satisfy the two step test propounded in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – Where there is no merit in the appeal – Appeal dismissed.

FAMILY LAW – APPEAL – CONTRAVENTION – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the evidence sought to be adduced is arguably inadmissible and even if admitted would be controversial – Where the evidence fails to demonstrate error by the primary judge – Application dismissed – Where there is no merit in any of the so-called grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs in the event that the appeals are dismissed – Costs to be dealt with separately.

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

Beesley & Ericsson (No 4) [2017] FCCA 2189
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
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Re J.R.L.; Ex parte C.J.L. (1986) 161 CLR 342; [1986] HCA 39

APPELLANT:

Mr Ericsson

RESPONDENT:

Ms Jarrold

FILE NUMBER:

DGC

1317

2013

APPEAL NUMBERS:	SOA	34	of	2020
SOA	96	of	2018

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:

12 November 2018

28 November 2018

LOWER COURT MNC:

[2018] FCCA 3987
[2018] FCCA 3462

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 16 July 2020 be dismissed.
Appeal nos. SOA 34 of 2020 and SOA 96 of 2018 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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Numbers: SOA 34 of 2020; SOA 96 of 2018
File Number: DGC 1317 of 2013

Mr Ericsson

Appellant

And

Ms Jarrold

Respondent

REASONS FOR JUDGMENT

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 & JARROLD

Details

AGLC: ERICSSON & JARROLD [2020] FamCAFC 298
Case: [2020] FamCAFC 298
Decision Date: 2 December 2020

CaseChat Overview and Summary

In the matter of Ericsson & Jarrold, the appeal arose from a family law matter concerning parenting arrangements. The appellant, Ericsson, sought to challenge the decisions of the primary judge regarding the parenting orders. The appeal was heard and determined by the Family Court of Australia. Ericsson argued that the primary judge was biased and that there were errors in the decision-making process that warranted a reversal of the orders. The respondent, Jarrold, opposed the appeal, asserting that there were no grounds to justify setting aside the original decisions.

The central legal issues that the court had to address were whether the primary judge demonstrated any apprehended bias, and if there were any errors in the decision-making process that warranted the appeal. The court was required to apply the two-step test for apprehended bias as established in Ebner v Official Trustee in Bankruptcy. The court also needed to assess whether the appellant's evidence, if adduced, could demonstrate any error by the primary judge. Furthermore, the court considered the application for leave to adduce further evidence and whether it would be admissible and relevant.

The Family Court of Australia found that none of Ericsson's complaints satisfied the two-step test for apprehended bias. The court held that there was no actual or apprehended bias on the part of the primary judge. The court also found that the evidence sought to be adduced in the appeal was arguably inadmissible and, even if admitted, would be controversial and did not demonstrate any error by the primary judge. As such, the court dismissed the application for leave to adduce further evidence. After reviewing all the grounds of appeal, the court concluded that there was no merit in any of the appeals. Consequently, the appeals were dismissed, and the application in an appeal was also dismissed.

In addition, the court ordered that the application in an appeal filed on 16 July 2020 be dismissed, and appeal numbers SOA 34 of 2020 and SOA 96 of 2018 be dismissed. The form of the order was subject to the entry of the order in the court's records. The respondent's application for costs in the event that the appeals were dismissed was to be dealt with separately.

Orders

Orders of the court

The Application in an Appeal filed on 16 July 2020 be dismissed.

Appeal nos. SOA 34 of 2020 and SOA 96 of 2018 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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