Gerardo & Gerardo - [2025] FedCFamC1F 299

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerardo & Gerardo [2025] FedCFamC1F 299

File number: SYC 7195 of 2023

Judgment of: SCHONELL J

Date of judgment: 8 May 2025

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant and respondent both seek leave to re-open the proceedings to adduce further evidence – Where the parties have been involved in contested litigation commencing with their separation in September 2023 – Where judgment is reserved – Where the respondent submitted that the matters he is seeking to adduce are a continuation of the allegations that formed the foundation of his case at trial – Where the application if granted will prolong the litigation – Where a continuation of the litigation is the antithesis of what is in the best interests of these children and against the interests of justice – Application for leave to re-open proceedings to adduce further evidence is withdrawn and dismissed.

Cases cited:
EB v CT (No. 2) [2008] QSC 306

Reid v Brett [2005] VSC 18

Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 23

Date of hearing: 6 May 2025

Place: Sydney

Solicitor for the Applicant: Mr Wahhab, York Family Law

The Respondent: Litigant in person

Solicitor for the Independent Children's Lawyer: Ms Wilkins, Phillip A Wilkins & Associates
ORDERS

SYC 7195 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GERARDO

Applicant

AND:
MR GERARDO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

6 MAY 2025

THE COURT ORDERS THAT:
1.The wife’s Application in a Proceeding sealed 1 May 2025 seeking leave to re-open the proceedings is withdrawn and dismissed.
2.The husband’s Application in a Proceeding sealed 5 May 2025 seeking leave to re-open the proceedings is dismissed.
3.This matter is set down for judgment delivery and the making of final orders at 9.15 am on Friday, 9 May 2025.
4.The father is to cause:
·        X born 2009;
·        Y born 2012; and
·        Z born 2014
(“the children”) to be delivered to the counselling section of the Sydney Registry of the Federal Circuit and Family Court of Australia (Level 2, 97-99 Goulburn Street, Sydney) at 9.00 am on Friday, 9 May 2025.

5.The Independent Children’s Lawyer or a family consultant together with the Independent Children’s Lawyer is to meet the children on that day for the purposes of having the final orders explained to them.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975

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 Gerardo & Gerardo

Details

AGLC: Gerardo & Gerardo [2025] FedCFamC1F 299
Case: [2025] FedCFamC1F 299
Decision Date: 8 May 2025

CaseChat Overview and Summary

In the matter of Ms Gerardo and Mr Gerardo, the Federal Circuit and Family Court of Australia was tasked with deciding whether to grant leave for both parties to re-open the proceedings in their ongoing litigation, which began with their separation in September 2023. Both the applicant and the respondent sought to introduce additional evidence into the proceedings, which were already reserved for judgment. The core legal issues centred around whether the proposed new evidence was a continuation of existing allegations and whether allowing it would unnecessarily prolong the litigation, which would be contrary to the best interests of the children and the interests of justice.

The court considered the implications of permitting further evidence and noted that a continuation of the litigation would not serve the best interests of the children or justice. The court was particularly mindful of the ongoing nature of the dispute and the impact that an extended legal battle could have on the children. In light of these considerations, the court determined that the applications for leave to re-open the proceedings should be dismissed. This decision aimed to protect the welfare of the children and to expedite the resolution of the case.

The court subsequently dismissed the wife's application to re-open the proceedings and withdrew it. Additionally, the husband's application seeking leave to introduce further evidence was also dismissed. The matter was scheduled for the delivery of judgment and the making of final orders on 9 May 2025. The father was directed to ensure the children attended a counselling session prior to the judgment delivery, where the final orders would be explained to them by the Independent Children’s Lawyer or a family consultant.

Orders

Orders of the court

SYC 7195 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS GERARDO

Applicant

AND:

MR GERARDO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

6 MAY 2025

THE COURT ORDERS THAT:

1. The wife’s Application in a Proceeding sealed 1 May 2025 seeking leave to re-open the proceedings is withdrawn and dismissed.

2. The husband’s Application in a Proceeding sealed 5 May 2025 seeking leave to re-open the proceedings is dismissed.

3. This matter is set down for judgment delivery and the making of final orders at 9.15 am on Friday, 9 May 2025.

4. The father is to cause:

· X born 2009;

· Y born 2012; and

· Z born 2014

(“the children”) to be delivered to the counselling section of the Sydney Registry of the Federal Circuit and Family Court of Australia (Level 2, 97-99 Goulburn Street, Sydney) at 9.00 am on Friday, 9 May 2025.

5. The Independent Children’s Lawyer or a family consultant together with the Independent Children’s Lawyer is to meet the children on that day for the purposes of having the final orders explained to them.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 7195 of 2023
Judgment of:	SCHONELL J
Date of judgment:	8 May 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant and respondent both seek leave to re-open the proceedings to adduce further evidence – Where the parties have been involved in contested litigation commencing with their separation in September 2023 – Where judgment is reserved – Where the respondent submitted that the matters he is seeking to adduce are a continuation of the allegations that formed the foundation of his case at trial – Where the application if granted will prolong the litigation – Where a continuation of the litigation is the antithesis of what is in the best interests of these children and against the interests of justice – Application for leave to re-open proceedings to adduce further evidence is withdrawn and dismissed.
Cases cited:	EB v CT (No. 2) [2008] QSC 306 Reid v Brett [2005] VSC 18 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	23
Date of hearing:	6 May 2025
Place:	Sydney
Solicitor for the Applicant:	Mr Wahhab, York Family Law
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Ms Wilkins, Phillip A Wilkins & Associates

SYC 7195 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GERARDO Applicant
AND:	MR GERARDO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	6 MAY 2025