RIMMINGTON & HEALEY - [2014] FamCAFC 140

FAMILY COURT OF AUSTRALIA

RIMMINGTON & HEALEY

[2014] FamCAFC 140

FAMILY LAW – APPEAL – CHILDREN – WITH WHOM THE CHILD IS TO LIVE – PARENTAL RESPONSIBILITY – where the trial judge made orders the effect of which was that the mother would have sole parental responsibility for the parties’ twin sons and the father would have no time or communication with them – where the father represented himself on the appeal – where the father’s Notice of Appeal contained 45 grounds – where, during the appeal, the father condensed his challenges to ten “grounds”– where the majority of those “grounds” were premised upon the contention that the trial judge erred in accepting the mother’s evidence over his own evidence – where no such error was demonstrated – where the father also contends that the trial judge made various errors of law and errors of fact – whether the trial judge so erred – where no error demonstrated – appeal dismissed – father ordered to pay the mother’s costs of the appeal.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Angaston and District Hospital v Thamm (1987) 47 SASR 177
CDJ v VAJ (1998) 197 CLR 172
Devries v Australia National Railways Commission (1993) 177 CLR 472
Donaghey & Donaghey (2011) 45 Fam LR 183
In the Marriage of N and S and The Separate Representative (1996) FLC 92-655
LC & TC (1998) FLC 92-803
Lenova & Lenova (Costs) [2011] FamCAFC 141
Russell & Close (Unreported, Full Court of the Family Court of Australia, Fogarty, Baker and Lindenmeyer JJ, 25 June 1993)
Simply Irresistible Pty Ltd C Couper [2010] VSC 505
Verge v Devere Holdings Pty Ltd (2009) 258 ALR 464
Zantiotis & Zantiotis (1993) FLC 92-367

APPELLANT:

Mr Rimmington

RESPONDENT:

Ms Healey

INDEPENDENT CHILDREN'S LAWYER:

Legal Aid

FILE NUMBER:

SYC

1762

2009

APPEAL NUMBER:

137

2012

DATE DELIVERED:

7 August 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Murphy JJ

HEARING DATE:

23 August 2013 &

13 February 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 September 2012

LOWER COURT MNC:

[2012] FamCA 810

REPRESENTATION

THE APPELLANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Mr Wong

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth Lawyers

SOLICITOR FOR THE

INDEPENDENT CHILDREN'S LAWYER :

Legal Aid NSW not participating

Orders

The Amended Application in an Appeal to adduce further evidence filed 5 August 2013 is dismissed.
The Further Amended Notice of Appeal filed 9 July 2013 is dismissed.
The appellant father pay the respondent mother’s costs of the appeal as agreed in writing between the parties or, failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Healey 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 SYDNEY

Appeal Number: EA 137 of 2012
File Number:…

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: RIMMINGTON & HEALEY [2014] FamCAFC 140
Case: [2014] FamCAFC 140
Decision Date

CaseChat Overview and Summary

In this case, the Full Court of the Family Court of Australia dismissed the father's appeal against the trial judge's parenting orders, which denied him any contact with his twin sons. The father, who represented himself, raised numerous grounds of appeal, primarily contending that the trial judge erred in preferring the mother's evidence over his own. The court found no merit in any of the father's challenges, concluding that the trial judge's findings were well open to him and that no error of law or fact was demonstrated. The Full Court also rejected the father's application to adduce further evidence, finding that the proposed evidence was irrelevant and lacked credibility. The court ordered the father to pay the mother's costs of the appeal.

Orders