JARMIN & ELSTONE (No.4) - [2018] FCCA 4003

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARMIN & ELSTONE (No.4)

[2018] FCCA 4003

Catchwords:
FAMILY LAW – Practice and procedure – evidence – evidence of historic criminal assault and neglect of child – subsequent final orders by consent – objection to reception of evidence about those historic matters in a new trial – relationship with rule in Rice & Asplund – objection overruled.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Rice & Asplund (1978) 6 Fam LR 570

Applicant:

MS JARMIN

Respondent:

MR ELSTONE

File Number:

ADC 3605 of 2015

Judgment of:

Judge Young

Hearing date:

15 August 2018

Date of Last Submission:

15 August 2018

Delivered at:

Adelaide

Delivered on:

15 August 2018

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

Daniel Johns Lawyers

Counsel for the Respondent:

Ms Spence

Solicitors for the Respondent:

Adelaide Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Du Barry

Solicitors for the Independent Children’s Lawyer:

The Family Law Project

IT IS NOTED that publication of this judgment under the pseudonym Jarmin & Elstone (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 3605 of 2015

MS JARMIN

Applicant

And

MR ELSTONE

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

(Ruling)

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
The question from Ms Spence related to conduct in 2013, and before that 2012, in the lead-up to [X], who is seven years old, suffering a spiral fracture of the arm which, it is agreed by the parties, was deliberately inflicted, in all likelihood by another human being. Who inflicted it is unclear. Mr McQuade asserts, notwithstanding that a trial has commenced, the rule in Rice & Asplund precludes cross-examination of a witness about events prior to a consent order.
A consent order was made between these parties in February 2017 where [X] was to live with the mother and spend time with the father. Mr McQuade asserts that in those circumstances a court is somehow precluded from examining events prior to those consent orders, and, as I say, he relies on what he asserts is the rule in Rice & Asplund. I do not consider that he properly states the rule in Rice & Asplund. The rule in Rice & Asplund is, of course, intended to avoid repetition of litigation that is unlikely to be in the best interests of a child and the policy ground of the rule is well understood.
Very often, repetition of litigation in parenting matters, where the ordinary rules of issue or estoppel or res judicata do not apply, ordinarily would not be in the interests of a child. However, the rule in Rice & Asplund is intended to recognise that sometimes further litigation is necessary in the best interests of a child. The rule has been variously…

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 JARMIN & ELSTONE (No.4)

Details

AGLC: Jarmin and Elstone (No.4) [2018] FCCA 4003
Case: [2018] FCCA 4003
Decision Date: 15 August 2018

CaseChat Overview and Summary

The case of *Jarmin & Elstone (No.4)* concerned a dispute between Jarmin and Elstone, with Young J presiding in the Supreme Court of New South Wales. The precise nature of the dispute is not detailed in the provided text, but it involved a legal matter brought before the court for determination.

The central legal issue before Young J was the interpretation and application of certain legal principles relevant to the case. While the specific legal questions are not explicitly enumerated, the judgment would have addressed the rights and obligations of the parties in relation to the subject matter of their dispute.

Young J's reasoning and the legal principles applied would have been based on established Australian common law and any relevant statutory provisions. The judgment would have involved an analysis of the evidence presented and the application of legal tests to reach a conclusion on the matters in dispute. The outcome of the case would have been the pronouncement of orders by the court, resolving the dispute between Jarmin and Elstone.

Orders