RABASSA & ZACKARY - [2020] FamCAFC 308

FAMILY COURT OF AUSTRALIA

RABASSA & ZACKARY

[2020] FamCAFC 308

FAMILY LAW – APPEAL – PARENTING – Appeal against parenting orders – Best interests of the child – Bias – Procedural fairness – Weight challenges – Reasons given in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Findings open on the evidence – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Appeal dismissed – No order as to costs.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where much of the material to be adduced was before the primary judge – Contentious documents – Application dismissed.

Family Law Act 1975 (Cth) ss 94(2A), 117

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor [1983] 3 NSWLR 378
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

APPELLANT:

Ms Rabassa

RESPONDENT:

Mr Zackary

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

6269

2016

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

11 December 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne (via video link)

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Tree JJ

HEARING DATE:

24 November 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 February 2020

LOWER COURT MNC:

[2020] FCCA 402

REPRESENTATION

THE APPELLANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Dr Smith

SOLICITOR FOR THE RESPONDENT:

Michael Benjamin and Associates

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Victoria Legal Aid (not participating in the appeal)

Orders

The Application in an Appeal to adduce further evidence filed on 7 May 2020 is dismissed.
The appeal against the orders of a judge of the Federal Circuit Court on 28 February 2020 (as amended on 11 June 2020) is dismissed.
There be no order as to costs.

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 Rabassa & Zackary 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

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.

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Details

AGLC: RABASSA & ZACKARY [2020] FamCAFC 308
Case: [2020] FamCAFC 308
Decision Date: 11 December 2020

CaseChat Overview and Summary

The appeal, heard by the Family Court of Australia, was brought by the father, Rabassa, against parenting orders made by a judge of the Federal Circuit Court, which were subsequently amended. The orders were made in a parenting case involving the father, the mother, Zackary, and their child. The father appealed on the grounds of alleged bias, procedural unfairness, and the weight given to certain evidence. The mother cross-appealed on the issue of costs.

The central legal issues in the appeal were whether the judge's decision was plainly wrong or whether there was an error in law or fact. The father argued that the judge was biased, failed to give adequate reasons, and wrongly assessed the evidence. The mother contended that the appeal should be dismissed as there was no error and that costs should be awarded in her favour.

The court examined the judge's reasons and found them to be adequate. It held that the findings were open on the evidence and that there was no basis to conclude that the judge was biased or that there was procedural unfairness. The court also found that the weight given to evidence was properly assessed. Consequently, the appeal was dismissed as the decision of the primary judge was not plainly wrong, and no error of fact or law was established. Additionally, the application to adduce further evidence in the appeal was dismissed as the material to be adduced was largely before the primary judge and the evidence was contentious.

The final orders of the court were to dismiss the application in an appeal to adduce further evidence, dismiss the appeal against the parenting orders, and make no order as to costs. The form of these orders was subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The Application in an Appeal to adduce further evidence filed on 7 May 2020 is dismissed.

The appeal against the orders of a judge of the Federal Circuit Court on 28 February 2020 (as amended on 11 June 2020) is dismissed.

There be no order as to costs.

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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