OTERO & OTERO

Case [2018] FamCAFC 188

FAMILY COURT OF AUSTRALIA

OTERO & OTERO [2018] FamCAFC 188

FAMILY LAW – APPEAL – PARENTING – Interim orders – Orders for both supervised and unsupervised time – Lack of procedural fairness – Inadequate reasons – Challenges to the primary judge’s exercise of discretion – Appeal allowed – Orders for unsupervised time set aside – Matter remitted for rehearing.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Evidence adduced to buttress the findings of the primary judge – Where the evidence is controversial – Leave refused.
Family Law Act 1975 (Cth) s 94AAA(3)
Family Law Rules 2004 (Cth) Sch 3
Federal Circuit Court Rules 2001 (Cth) r.16.05
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kennedy v Thorne (2017) 350 ALR 1; [2017] HCA 49
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Company Ltd v McDermott (2016) 331 ALR 550; [2006] HCA 22
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Vanzin & Vanzin [2014] FamCAFC 245
APPELLANT: Ms Otero
RESPONDENT: Mr Otero
FILE NUMBER: SYC 2818 of 2018
APPEAL NUMBER: EA 109 of 2018
DATE DELIVERED: 25 September 2018
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge J
HEARING DATE: 20 September 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 2 August 2018
LOWER COURT MNC: [2018] FCCA 2093

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Kennedy
SOLICITOR FOR THE APPELLANT: Pearson Emerson Meyer Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Livingstone
SOLICITOR FOR THE RESPONDENT: Cominos Family Lawyers

Orders

  1. Leave for the respondent to file in court an Application in an Appeal seeking to adduce further evidence is refused.

  2. Appeal EA109 of 2018 is allowed.

  3. Orders 4(b) and 4(c) made by Judge Harper on 23 July 2018 are set aside.

  4. The matter is remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Harper.

  5. The respondent is to pay the appellant’s costs assessed in the sum of $17,000.

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 Otero & Otero 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…

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AGLC
OTERO & OTERO [2018] FamCAFC 188
Case
[2018] FamCAFC 188
Decision Date

CaseChat Overview and Summary

In the matter of Otero & Otero, the Federal Circuit Court of Australia addressed an appeal concerning parenting arrangements for children. The appeal originated from a decision made by Judge Harper, which mandated both supervised and unsupervised visitation times for the father with his children. The father contested the decision, arguing that the process lacked procedural fairness and that the reasons provided were inadequate. Additionally, he questioned the primary judge's exercise of discretion in determining the visitation terms.

The legal issues before the court included whether the primary judge's process was fair and whether the reasons provided were adequate to support the decision. Furthermore, the court examined whether the appeal's attempt to introduce further evidence was permissible under the circumstances. The father also challenged the exercise of discretion by the primary judge in setting the visitation terms.

The court found that the process before Judge Harper was not procedurally fair as it did not provide adequate opportunity for the father to respond to critical allegations. The reasons provided by the primary judge were deemed insufficient to justify the decision, and the discretion exercised was found to be inappropriate. Consequently, the appeal was allowed, and the orders for unsupervised time were set aside. The matter was remitted to the Federal Circuit Court of Australia for rehearing by a different judge. Additionally, the respondent's application for leave to adduce further evidence was refused. The appellant was awarded costs of $17,000.

Orders

Orders of the court

1.

Leave for the respondent to file in court an Application in an Appeal seeking to adduce further evidence is refused.

2.

Appeal EA109 of 2018 is allowed.

3.

Orders 4(b) and 4(c) made by Judge Harper on 23 July 2018 are set aside.

4.

The matter is remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Harper.

5.

The respondent is to pay the appellant’s costs assessed in the sum of $17,000.

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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