Ibbot and Baumer - [2019] FamCA 138

FAMILY COURT OF AUSTRALIA

IBBOT & BAUMER

[2019] FamCA 138

FAMILY LAW – CHILDREN – Parenting – Where final judgment is reserved – Where an Application in a Case was filed to re-open the trial and for new evidence to be adduced – Where the father alleges that he has not seen or spoken to the children since before the trial – Where the orders currently in place do not provide for the children to spend any time with the father – Where these orders were not sought to be varied at the trial while the judgment is reserved – Where the mother submitted, and the father acknowledged, that phone contact had recommenced – Where the situation is not substantially different to that at the time of the trial – Where the mother would suffer significant prejudice if the matter were re-opened – Where the Application in a Case is dismissed.

Family Law Act 1975 (Cth)

EB v CT (No 2) [2008] QSC 306
Miller & Cooper [2015] FamCA 997
Smith v NSW Bar Association (1992) 176 CLR 256
Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

APPLICANT:

Mr Ibbot

RESPONDENT:

Ms Baumer

INDEPENDENT CHILDREN’S LAWYER:

Barbara Fox

FILE NUMBER:

LEC

310

2016

DATE DELIVERED:

14 March 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

11 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Boys
MPB Lawyers

SOLICITOR FOR THE RESPONDENT:

Mr O'Reilly
O'Reilly & Sochacki Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fox
Barbara Fox Solicitor

Orders

The father’s application to re-open the trial and to admit additional affidavits into evidence, is 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 Ibbot & Baumer 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 310 of 2016

Mr Ibbot

Applicant

And

Ms Baumer

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This is the determination of an application to re-open a trial that concluded on 16 November 2018 and to allow further evidence to be adduced of matters that have occurred since the trial and whilst my judgment has been reserved.
The trial, of three days duration, was the hearing of competing parenting applications of the mother and father of two children, both boys, aged eight and five at that time. The mother was represented by a solicitor and counsel. The father was represented by a solicitor and there was an…

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 Ibbot and Baumer

Details

AGLC: Ibbot and Baumer [2019] FamCA 138
Case: [2019] FamCA 138
Decision Date: 14 March 2019

CaseChat Overview and Summary

In *Ibbot and Baumer*, heard before Forrest J, the father sought to re-open the trial and admit additional affidavits into evidence. The precise nature of the underlying dispute is not detailed in the provided text, but the application to re-open the trial indicates that the proceedings had reached a stage where evidence was being considered or had been presented.

The central legal issue before the court was whether to permit the re-opening of the trial to receive further evidence. This required the court to consider the principles governing the admission of fresh evidence after a trial has commenced or concluded, and the circumstances under which such applications are typically granted or refused.

Forrest J dismissed the father's application. While the specific reasoning is not elaborated, the decision to refuse the re-opening of the trial suggests that the court found the application did not meet the necessary legal threshold for admitting further evidence at that stage of proceedings. This typically involves considerations of whether the evidence is fresh, relevant, credible, and could not have been obtained with reasonable diligence at an earlier time, and whether its admission would be in the interests of justice.

The father's application to re-open the trial and admit additional affidavits into evidence was dismissed.

Orders

Orders of the court

The father’s application to re-open the trial and to admit additional affidavits into evidence, is 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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