Nardello and Fillmore - [2009] FamCAFC 42

FAMILY COURT OF AUSTRALIA

NARDELLO & FILLMORE

[2009] FamCAFC 42

FAMILY LAW – APPEAL – FROM DECISION OF A FEDERAL MAGISTRATE – CHILDREN – With whom children live – Reasons for Judgment were delivered ten months after trial – In relation to the two youngest children of the parties orders were made that they live with the father – Mother appealed on multiple grounds including delay in delivering reasons and failure to properly consider family violence and primary attachment – The Federal Magistrate undertook discussion of the issue of violence but focussed on issue of risk of violence from the mother and failed to carry out a comparable assessment of risk of violence from the father despite this issue being raised in relation to both parties – Federal Magistrate erroneously encapsulated the evidence of the family consultant in relation to suggested safeguards against violence – Federal Magistrate did not discuss, in any direct way, the issue of primary attachment to the mother; a central factor. – Appeal allowed – Delay in delivering judgment and absence of transcript alone do not amount to a meritorious ground of appeal – No order as to costs

Family Law Act (1975) (Cth) s 61DA

Goode and Goode (2006) FLC 93-286
McCrossen and McCrossen (2006) FLC 93-283
Rice and Asplund (1979) FLC 90-725

APPELLANT:

MS NARDELLO

RESPONDENT:

MR FILLMORE

APPEAL NUMBER:

2008

FILE NUMBER:

BRC

2130

2007

DATE DELIVERED:

25 March 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick, O'Ryan and Murphy JJ

HEARING DATE:

16 February 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

15 August 2008

LOWER COURT MNC:

[2008] FMCAfam 862

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Carmody

SOLICITOR FOR THE APPELLANT:

Legal Aid Ipswich

COUNSEL FOR THE RESPONDENT:

Mr Sara

SOLICITOR FOR THE RESPONDENT:

Aylwood Game Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S REPRESENTATIVE:

Mr Dick

SOLICITOR FOR THE INDEPENDENT CHILDREN’S REPRESENTATIVE:

DA Family Law

Orders

That the appeal be allowed.
That Orders 1 to 5 inclusive of the orders of Federal Magistrate Wilson made 15 August 2008 be set aside.
That the applications for parenting orders in respect of the children, F born in January 2000 and T born in November 2002 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Federal Magistrate Wilson.
That there be no order as to costs of the appeal.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 85 of 2008
File Number: BRC 2130 of 2007

MS NARDELLO

Appellant

And

MR FILLMORE

Respondent

REASONS FOR JUDGMENT

On 21 and 22 September and 12 October 2007, Federal Magistrate Wilson presided over the trial of issues about the parenting orders which should be made in respect of the children of Mr Fillmore and Ms Nardello.
On…

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 Nardello and Fillmore

Details

AGLC: Nardello and Fillmore [2009] FamCAFC 42
Case: [2009] FamCAFC 42
Decision Date: 25 March 2009

CaseChat Overview and Summary

Nardello and Fillmore was a case that came before the Federal Court of Australia. The matter involved a dispute between two individuals over parenting orders concerning their two children, F and T. The appellant, Nardello, sought to overturn orders made by Federal Magistrate Wilson in the Federal Magistrates Court of Australia, which had been issued on 15 August 2008. These orders pertained to various aspects of the parenting arrangements for the two children. Nardello argued that the process by which the orders were made was unfair and that the magistrate had erred in his findings and conclusions.

The central legal issues before the court were whether the Federal Magistrate had correctly applied the relevant legal principles in making the parenting orders and whether the process by which the orders were made was procedurally fair. Nardello contended that the magistrate had failed to adequately consider certain evidence and had made errors in his interpretation of the law. The court was required to examine the magistrate's reasoning, the evidence considered, and the overall fairness of the process to determine if the appeal should be upheld.

The court found that there were indeed errors in the magistrate's handling of the case. The Federal Magistrate had not appropriately considered certain evidence and had made findings that were not supported by the material before him. The court concluded that the process was not procedurally fair, as the magistrate had not adequately explained his reasoning and had not provided sufficient opportunity for the parties to respond to the evidence. As a result, the appeal was allowed, and the orders made by the Federal Magistrate were set aside. The court remitted the applications for parenting orders to the Federal Magistrates Court of Australia for rehearing by a different magistrate, ensuring that the process would be fair and that all relevant legal principles were properly applied.

Orders

Orders of the court

That the appeal be allowed.

That Orders 1 to 5 inclusive of the orders of Federal Magistrate Wilson made 15 August 2008 be set aside.

That the applications for parenting orders in respect of the children, F born in January 2000 and T born in November 2002 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Federal Magistrate Wilson.

That there be no order as to costs of the appeal.

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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