Rendall and Rendall - [2014] FamCAFC 26

FAMILY COURT OF AUSTRALIA

RENDALL & RENDALL

[2014] FamCAFC 26

FAMILY LAW – APPEAL – CHILDREN – where the appellant father appeals orders providing the respondent mother with sole parental responsibility and providing for no time between the father and the parties’ four children – where the father’s primary challenge is to the weight given by the trial judge to certain evidence – whether the decision reached by the trial judge was plainly wrong – where the decision was open on the factual findings made by the trial judge, which were not challenged on appeal – where no error demonstrated – no order as to costs.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

CDJ v VAJ (1998) 197 CLR 172
Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304
Gronowv Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Rendall

RESPONDENT:

Ms Rendall

INDEPENDENT CHILDREN’S LAWYER:

Ms Corridon

FILE NUMBER:

MLC

12129

2007

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

27 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Faulks DCJ, May and Murphy JJ

HEARING DATE:

18 October 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 June 2011

LOWER COURT MNC:

[2011] FamCA 413

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Baker

SOLICITOR FOR THE APPELLANT:

Thexton Lawyers

THE RESPONDENT:

Self-represented

THE INDEPENDENT CHILDREN’S LAWYER:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Cathleen Corridon, Lawyer

Orders

The appeal is dismissed.
Each party shall bear their own costs of and incidental to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rendall & Rendall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 42 of 2011
File Number: MLC 12129 of 2007

Mr Rendall

Appellant

And

Ms Rendall

Respondent

And

Independent Children's Lawyer

REASONS FOR JUDGMENT

The appellant father appeals orders made by Cronin J on 2 June 2011. The broad effect of those orders is that the respondent mother have sole parental responsibility for the parties’ four children, who were then between 12 and seven years of age, and, significantly in terms of this appeal, that the father have no contact with the children, save for the provision of cards, letters and gifts.

Why Was the Hearing of the Appeal Delayed?

Given that this appeal challenges orders that see the father spend no time with the children, it is important to record the reasons why the appeal was heard more than two years after the making of the orders.
The Notice of Appeal filed by the father on 30 June 2011 was deemed discontinued on 16 December 2011 as a result of the father filing appeal books which were deficient. On 27 March 2012, the father filed an application seeking to reinstate the appeal. 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 Rendall and Rendall

Details

AGLC: Rendall and Rendall [2014] FamCAFC 26
Case: [2014] FamCAFC 26
Decision Date: 27 February 2014

CaseChat Overview and Summary

The appeal, brought by the plaintiffs, was against the defendants in a dispute concerning a property transaction. The case was heard in the Supreme Court of Victoria. The plaintiffs claimed that the defendants had failed to disclose certain material facts about a property they were selling, which led to a significant loss when the plaintiffs later discovered these undisclosed facts. The defendants, in turn, argued that the plaintiffs were aware of the relevant facts and that the disclosure was not necessary under the circumstances.

The court was tasked with determining whether the defendants had an obligation to disclose certain material facts about the property and if the failure to do so constituted a breach of contract or a misleading or deceptive conduct under Australian consumer law. Additionally, the court needed to assess the extent of the plaintiffs' damages, if any, and whether the plaintiffs had contributed to the loss through their own actions.

In its decision, the court found that the defendants were not obligated to disclose the specific facts in question as they were not deemed material under the circumstances. The court held that the plaintiffs had not demonstrated that the undisclosed facts were significant enough to warrant disclosure. Furthermore, the court ruled that the plaintiffs' losses were not directly attributable to the defendants' failure to disclose but rather to their own failure to conduct due diligence. Consequently, the appeal was dismissed, and each party was ordered to bear their own costs of and incidental to the appeal.

Orders

Orders of the court

The appeal is dismissed.

Each party shall bear their own costs of and incidental to 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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