Helbig & Rowe

Case [2016] FamCAFC 117


FAMILY COURT OF AUSTRALIA

HELBIG & ROWE AND ORS [2016] FamCAFC 117

FAMILY LAW – APPEAL – CHILDREN – Allegations of risk of sexual abuse – Single expert report – Credit – Alleged errors of fact – Weight attributed to the evidence – Unacceptable risk – Unacceptable risk of abuse not established – Where children to live with father and spend time with mother – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPLICATION IN AN APPEAL – Application to adduce further evidence on appeal – Application dismissed.

Evidence Act 1995 (Cth) ss 79(1), 97, 135, 138

Family Law Act 1975 (Cth) ss 4AB(1), 60CC

Family Law Rules 2004 (Cth) rr 1.19(1)(e) and (3), 22.22(2)(c)

A v A (1998) FLC 92-800
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 118 ALR 248
Coulton v Holcombe (1986) 162 CLR 1
D & D (Costs) (No. 2) (2010) FLC 93-435
Gronow v Gronow (1979) 144 CLR 513
Helbig & Rowe [2012] FamCAFC 169
Helbig & Rowe [2014] FamCAFC 179
Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625
Johnson and Page (2007) FLC 93- 344
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin (Costs) (2007) 38 Fam LR 478
McDruitt & Van [2009] FamCA 788
Metwally v University of Wollongong (1985) 60 ALR 68
Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPELLANT: Ms Helbig
RESPONDENT: Mr Rowe
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
INTERVENER: Secretary, Department of Family and Community Services (NSW)
FILE NUMBER: PAC 5421 of 2010
APPEAL NUMBER: EA 50 of 2015
DATE DELIVERED: 6 July 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan & Aldridge JJ
HEARING DATE: 3 & 4 September 2015
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 9 March 2015
LOWER COURT MNC: [2015] FamCA 146

REPRESENTATION

THE APPELLANT: In person
SOLICITOR FOR THE RESPONDENT: O’Sullivan Legal

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Ward
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
COUNSEL FOR THE INTERVENER: Mr Anderson
SOLICITOR FOR THE INTERVENER: Crown Solicitor’s Office

Orders

  1. The Application in an Appeal filed 27 August 2015 be dismissed.

  2. The appeal be dismissed.

  3. The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, or in default of agreement as assessed, within twenty-eight (28) days of the agreement or the assessment.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Helbig & Rowe and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 50 of 2015
File Number: PAC 5421 of 2010

Ms Helbig

Appellant

and

Mr Rowe

Respondent

and

Legal Aid NSW
Independent Children’s Lawyer

and

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Details
AGLC
Helbig & Rowe [2016] FamCAFC 117
Case
[2016] FamCAFC 117
Decision Date

CaseChat Overview and Summary

In the appeal case of Helbig & Rowe, the mother sought to appeal the primary judge's findings regarding the care, custody, and control of the children. The dispute centred around allegations of risk of sexual abuse against the father, with the mother arguing that there was an unacceptable risk of abuse if the children were to live with the father and spend time with her. The matter was heard by the Family Court of Australia.

The legal issues before the court included whether the primary judge erred in law by failing to take into account all of the material before him, whether the primary judge erred in the weight attributed to the evidence, and whether the primary judge erred in fact in relation to certain factual findings. Additionally, the court had to consider the mother's application to adduce further evidence on appeal, which was made pursuant to the Family Law Rules.

The court found that there was no merit in any of the grounds of appeal. The court held that the primary judge did not err in law or in fact, and that he appropriately assessed the evidence, including the single expert report, and determined that there was no unacceptable risk of sexual abuse. The court also dismissed the mother's application to adduce further evidence on appeal, finding that it was not appropriate to allow such evidence in the circumstances of this case. The appeal was therefore dismissed, with the mother ordered to pay the father's costs of and incidental to the appeal.

Orders

Orders of the court

1.

The Application in an Appeal filed 27 August 2015 be dismissed.

2.

The appeal be dismissed.

3.

The appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed, or in default of agreement as assessed, within twenty-eight (28) days of the agreement or the assessment.

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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