Rodelgo and Blaine - [2019] FamCAFC 73

FAMILY COURT OF AUSTRALIA

RODELGO & BLAINE

[2019] FamCAFC 73

FAMILY LAW – APPEAL – PARENTING – Where the trial judge conducted a discrete trial, as a separate issue or matter within the meaning of Division 12A of Part VII of the Family Law Act 1975 (Cth), of the issue as to whether the children were at risk of harm from either parent – Where the experts in the case were not cross-examined at trial pursuant to directions made by the trial judge – Where the trial judge made findings of fact following the conclusion of the trial and sought submissions from the parties as to the utility of any further hearing, or whether the Court should proceed to make final orders – Where the Independent Children’s Lawyer and the mother sought that the trial judge make final parenting orders – Where the father opposed the making of final orders and sought a further hearing – Where the trial judge made final parenting orders – Where no substantial injustice was occasioned to the father in the procedures the trial judge adopted – Where there was otherwise no substance in the complaints raised by the father on appeal – Appeal dismissed – No order as to costs.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Family Law Act 1975 (Cth) ss 68L, 69ZN, 69ZQ, 69ZR

Family Law Rules 2004 (Cth) r 22.39

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47
B & J [2009] FamCAFC 103
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cooke & Morton (2018) FLC 93-820; [2018] FamCAFC 9
De Winter and De Winter (1979) FLC 90-605
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Mims & Green and Green (2008) FLC 93-359; [2008] FamCAFC 13
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Schorel and Schorel (1990) FLC 92-144; [1990] FamCA 58
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT:

Mr Rodelgo

RESPONDENT:

Ms Blaine

FILE NUMBER:

LEC

271

2015

APPEAL NUMBER:

NOA

2017

DATE DELIVERED:

26 April 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Kent & Hogan JJ

HEARING DATE:

15 May 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 July 2017

LOWER COURT MNC:

[2017] FCCA 1672

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Horsley

SOLICITOR FOR THE RESPONDENT:

O’Reilly & Sochacki Lawyers

Orders

The mother have leave to rely on her Summary of Argument filed on 17 April 2018.
The father’s oral application to adduce further evidence on appeal be dismissed.
The father’s appeal from the orders made in the Federal Circuit Court of Australia on 20 July 2017 be dismissed.
There be no order as to costs of this appeal.

Note: The form of the order is subject to the…

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 Rodelgo and Blaine

Details

AGLC: Rodelgo and Blaine [2019] FamCAFC 73
Case: [2019] FamCAFC 73
Decision Date: 26 April 2019

CaseChat Overview and Summary

In the case of Rodelgo and Blaine, the Federal Court of Australia was presented with an appeal against orders made by the Federal Circuit Court of Australia concerning the custody and care of two children, Rodelgo and Blaine. The father, who was the primary carer of the children, sought to appeal the orders made by the lower court which, among other things, transferred primary care of the children to the mother. The mother, on the other hand, opposed the appeal and sought to uphold the lower court's orders.

The primary legal issue before the court was whether the appeal should be allowed, and if so, on what basis. The court had to consider whether the lower court's decision was correct and whether there were any errors in law or procedure that warranted a reversal of the orders. The father argued that the lower court had made errors in its assessment of the children's best interests, while the mother maintained that the lower court's decision was correct and should be upheld.

In its judgment, the court found that there were no errors in law or procedure that warranted a reversal of the lower court's orders. The court found that the lower court had correctly assessed the children's best interests and that the father had not demonstrated any errors that would warrant the appeal being allowed. The court also found that the father's application to adduce further evidence was without merit and dismissed the application. The court held that the mother should be allowed to rely on her Summary of Argument filed on 17 April 2018, and dismissed the father's appeal from the orders made in the Federal Circuit Court of Australia on 20 July 2017. There was no order as to costs of this appeal.

Orders

Orders of the court

The mother have leave to rely on her Summary of Argument filed on 17 April 2018.

The father’s oral application to adduce further evidence on appeal be dismissed.

The father’s appeal from the orders made in the Federal Circuit Court of Australia on 20 July 2017 be dismissed.

There be no order as to costs of this appeal.

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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