HOLST & BLAKESLEE - [2017] FCCA 3399

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOLST & BLAKESLEE

[2017] FCCA 3399

Catchwords:
FAMILY LAW – Parenting – consideration of principle in Rice & Asplund – Father’s Application dismissed including for the failure by the Father to file any evidence in support of his Application.

Legislation:

Family Law Act 1975

Cases cited:

Carriel v Lendrum (2015) 53 Fam LR 157
CDW v LVE [2015] WASCA 247
Marsden v Winch (2010) 42 Fam LR 1
Miller v Harrington (2008) 220 FLR 300; (2009) 39 Fam LR 654
Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC ¶90-725

SPS & PLS (2008) 217 FLR 164; (2008) FLC ¶93–363; (2009) 39 Fam LR 295
Walter & Walter [2016] FamCAFC 56

Applicant:

MS HOLST

Respondent:

MR BLAKESLEE

File Number:

CAC 1823 of 2013

Judgment of:

Judge Neville

Hearing date:

25 October 2017

Date of Last Submission:

10 November 2017 (matter determined “on the papers”)

Delivered at:

Canberra

Delivered on:

16 November 2017

REPRESENTATION

Solicitors for the Applicant:

Legal Aid NSW

Solicitors for the Respondent:

Self represented

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ON A FINAL BASIS, THE COURT ORDERS THAT:

The Independent Children’s Lawyer be discharged.
The Initiating Application filed by the Mother on 16 February 2017 and the Response filed by the Father on 20 March 2017 be dismissed.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

IT IS NOTED that publication of this judgment under the pseudonym Holst & Blakeslee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1823 of 2013

MS HOLST

Applicant

And

MR BLAKESLEE

Respondent

REASONS FOR JUDGMENT

Introduction

On 16^th November 2017 I delivered detailed oral reasons in relation to a very small number of discrete issues regarding the ongoing parenting contest between these parties. For reasons not explained the Father did not attend the delivery of judgment; nor did he attend by telephone (the Father lives (omitted) New South Wales, as does the Mother). After delivery of reasons, the Father later contacted my Chambers to ask for written reasons. These are those reasons, slightly revised, but in no substantive way, from the transcript.
The matter was dealt with by way of written submissions, which is also to confirm, contrary to any belief of the Father, that there was no actual hearing of the matter in Court.
This matter has not infrequently…

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

AGLC: Holst and Blakeslee [2017] FCCA 3399
Case: [2017] FCCA 3399
Decision Date: 16 November 2017

CaseChat Overview and Summary

Holst & Blakeslee (the applicants) sought judicial review of a decision by the respondent, the Minister for Immigration and Border Protection, to refuse their applications for a Protection visa. The applicants, who were citizens of Afghanistan, claimed to have suffered persecution in their home country and sought protection in Australia. The Minister had refused their applications on the basis that they did not meet the criteria for a Protection visa under the Migration Act 1958 (Cth).

The primary legal issue before Neville J was whether the Minister's decision to refuse the Protection visa applications was affected by an error of law. Specifically, the court was asked to consider whether the delegate of the Minister had failed to properly consider all relevant information and evidence provided by the applicants, and whether the delegate had applied the correct legal test when assessing the risk of persecution. The applicants argued that the delegate had overlooked crucial aspects of their claims, leading to an unreasonable and legally flawed refusal.

Neville J found that the delegate had indeed made an error of law by failing to adequately consider the cumulative effect of the evidence presented by the applicants. His Honour held that the delegate had treated each piece of evidence in isolation, rather than assessing how they collectively painted a picture of the risks faced by the applicants. This approach was contrary to the principles of administrative decision-making, which require a holistic and comprehensive evaluation of all material before the decision-maker. The court reiterated that a delegate must engage with the entirety of the evidence to determine whether a real chance of persecution exists.

Consequently, Neville J quashed the Minister's decision and remitted the applications to the Minister for reconsideration according to law.

Orders