Muir & Rodelo - [2022] FedCFamC1F 1023

Federal Circuit and Family Court of Australia
(DIVISION 1)
Muir & Rodelo [2022] FedCFamC1F 1023

File number: SYC 925 of 2019

Judgment of: HENDERSON J

Date of judgment: 15 July 2022

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Re-open – Where the mother and Independent Children’s Lawyer (“ICL”) sought leave to re-open the proceedings – Where police subpoena material highlight concerning allegations made against the father by his current partner – Leave granted.

FAMILY LAW – CHILDREN – Best interests – Family violence – Risk – With whom a child spends time with – Where the mother and ICL sought an order that the children spend no time with the father in light of recent police subpoena material – Where the father resisted this order – Where the recent material highlights serious concerns about the conduct of the father – Where the father poses an unacceptable risk to the children – Orders made for the children to spend no time with the father and he ensure the return of the children to the mother.

FAMILY LAW – EVIDENCE – Expert evidence – Where the mother sought the father be responsible for costs relating to an updating expert report – Where the father and his conduct has caused a need for an updated expert report – Order made for an expert report and associated and consequential costs to be paid for solely by the father.

FAMILY LAW – INJUNCTION – Personal protection – Where the mother sought various injunctions restraining the father – Where father poses an unacceptable risk – Where the father has previously defied orders of the Court resulting in various recovery applications – Orders made as sought by the mother.

Legislation: Family Law Act 1975 (Cth) ss 68B, 102NA.

Division: Division 1 First Instance

Number of paragraphs: 33

Date of hearing: 15 July 2022

Place: Sydney

Counsel for the Applicant: Ms Gillies SC

Solicitor for the Applicant: Holmes Donnelly and Co Solicitors

Counsel for the Respondent: Mr Livingstone

Solicitor for the Respondent: Beswick Lynch Lawyers

Counsel for the Independent Children’s Lawyer: Ms Shea

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 925 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MUIR

Applicant

AND:
MR RODELO

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

HENDERSON J

DATE OF ORDER:

15 JULY 2022

THE COURT ORDERS THAT:
1.That leave be granted to re-open the evidence in these proceedings.
2.That leave be granted to the Independent Children’s Lawyer to provide to Dr B a copy of:
(a)Exhibit M14;
(b)The Mother’s affidavit filed on 15 July 2022, and
(c)The Father’s affidavit filed on 6 July 2022
(d)Any further affidavits or material filed.

and that Dr B be requested:
(e)To consider the above material and indicate whether he wishes to re-interview either of the parties, Ms D and/or the children, and
(f)To prepare a brief update report in relation to any matters he considers relevant to the welfare of the children arising from…

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 Muir & Rodelo

Details

AGLC: Muir & Rodelo [2022] FedCFamC1F 1023
Case: [2022] FedCFamC1F 1023
Decision Date

CaseChat Overview and Summary

In the case of Muir & Rodelo, the Independent Children's Lawyer and the mother sought leave to re-open the proceedings in the Federal Circuit and Family Court of Australia. The re-opening was prompted by new police subpoena material that highlighted concerning allegations made against the father by his current partner, Ms D. The court was required to decide whether the proceedings should be re-opened and, if so, what orders should be made regarding the children's contact with the father. The court also had to consider the costs associated with an updated expert report and whether the father posed an unacceptable risk to the children.

The court granted leave to re-open the proceedings and found that the father posed an unacceptable risk to the children. The court found that the father's conduct, attitude, and behaviour was inconsistent with his apology to the mother and his admission that he had to do better. The court found that the father's retaliatory behaviour towards the mother and his alleged treatment of Ms D echoed the mother's evidence of his coercive and controlling behaviour, violence, and litigious approach. The court found that the father's conduct and behaviour posed an unacceptable risk of harm to the children whilst in his care. The court also found that the father had little, if any, capacity to comply with court orders and had breached several orders in the past. Therefore, the court made orders for the children to spend no time with the father and for the father to ensure the return of the children to the mother. The court also made orders for the father to bear the cost of an updated expert report and associated costs. Finally, the court made personal protection orders for the mother and the children against the father, including a warrant for arrest if breached.

Orders