FAMILY COURT OF AUSTRALIA
| VALDEZ & FRAZIER | [2016] FamCAFC 54 |
| FAMILY LAW – APPEAL – CHILDREN – Where the appellant did not direct attention to any particular aspect of the conduct of the trial judge which could demonstrate bias – Where the appellant has not demonstrated that the trial judge relied upon undisclosed material or evidence in determining the case – Where the trial judge’s reasons illuminate in detail the evidence considered by the trial judge – Where the trial judge gave detailed consideration of the complaints made by the appellant in her reasons for judgment – Where there is no error in the trial judge’s assessment of the relevant evidence or these issues – Where the trial judge did not make a finding that the respondent was the child’s primary attachment figure and thus the appellant’s complaints as to this finding must fail – Where the appellant did not provide any evidence as to the respondent’s willingness to usurp the parental relationship between her previous foster child and the child’s mother and thus this issue was adequately dealt with by the trial judge – Where there is no substance in the assertion that the trial judge made contradictory findings on the same evidence – Where there is no substance in the complaint that the trial judge did not address each parent’s attitude to the other regarding the child – Where the trial judge provided specific reasons for rejecting the orders sought by the appellant – Where the trial judge demonstrated ample consideration of the proposals of each of the parties – Where the appellant did not agitate the issue of family violence at trial and cannot now seek to agitate it on appeal – Where the trial judge’s reasons reflect careful consideration of future aspects concerning the child and adequately dealt with those to the extent to which she could be reasonably expected to – Where the trial judge’s path to determining the time the child should spend with the father was amply explained – Where there is no substance in the appellant’s complaint that the single expert relied upon undisclosed extrinsic evidence in formulating his opinions – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – RE-OPENING – Where the appellant made two separate applications to re-open the hearing of the appeal – Where the appellant sought to admit an affidavit of a friend as to the alleged distress of the child when transitioning from the father’s care to the mother’s care – Where this was a live issue at final trial – Where this evidence was only sought in first application filed by the appellant – Where the appellant claimed that two social science articles should be admitted into evidence to demonstrate that the opinions and evidence of the single expert were fundamentally flawed and inaccurate – Where the appellant contended for a selective approach of the single expert’s evidence which would omit any evidence… |
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- AGLC
- Valdez & Frazier [2016] FamCAFC 54
- Case
- [2016] FamCAFC 54
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge demonstrated bias, whether the trial judge relied on undisclosed material, and whether the trial judge made errors in assessing the evidence and determining the child's best interests. The court also considered whether the trial judge adequately addressed the complaints made by Valdez, and whether the trial judge properly evaluated the evidence and proposals of both parties. Additionally, the court examined the applications to re-open the evidence and the applications in the appeal, including the admissibility of new evidence and the relevance of social science research.
The court found that there was no evidence of bias on the part of the trial judge, and that the judge's reasons for judgment were thorough and considered all relevant evidence and complaints made by Valdez. The court concluded that the trial judge had given detailed consideration to the evidence and did not make any errors in assessing it. The court also determined that there was no merit in Valdez's complaints about the trial judge's findings and the assessment of the child's best interests. The court found that the trial judge correctly applied the relevant principles and considerations in deciding not to admit new evidence, and that there was no substance in Valdez's claims that the trial judge failed to address certain issues or made contradictory findings. The court dismissed all grounds of appeal and denied the applications to re-open the evidence and the applications in the appeal.
The court granted leave for Valdez to appeal the orders out of time, as the orders sought were overtaken by the hearing of the appeal. However, the court dismissed the applications to adduce new evidence and to re-open the hearing of the appeals, finding that there was no basis for doing so. The court also granted costs to the respondent, Frazier, as Valdez was wholly unsuccessful in the appeal and neither appeal had any merit. The parties were directed to provide written submissions on the costs of the applications in the appeal.
Orders
Orders of the court
ORDER MADE ON 16 MARCH 2015
The applications for orders numbered 9 to 20 in the appellant’s application in an
appeal filed on 19 December 2014 be dismissed.
Orders made on date of delivery of judgment
1.
The time to file a Notice of Appeal against the orders made on 23 July 2014 is extended nunc pro tunc to 8 September 2014 and the Notice of Appeal filed in appeal EA 111 of 2014 be deemed to be the Notice of Appeal against the orders made on 23 July 2014.
2.
The appellant’s application for orders numbered 4 and 5 sought in the appellant’s Application in an Appeal filed in EA 114 of 2014 on 8 September 2014 be dismissed.
3.
The appellant’s application for orders numbered 1 to 8 sought in the Application in an Appeal in EA 114 of 2014 filed on 19 December 2014 be dismissed.
4.
The appeal EA 111 of 2014 against the orders made on 23 and 24 July 2014 be dismissed.
5.
The appeal EA 114 of 2014 against the final parenting orders made by Judge Walker in the Federal Circuit Court on 24 July 2014 be dismissed.
6.
The appellant pay the respondent’s costs of and incidental to each of the Applications in an Appeal filed in EA 114 of 2014 on 8 September 2014 and 19 December 2014; the appeal in EA 111 of 2014; and the appeal in EA 114 of 2014 as agreed or, in default of agreement, as assessed.
7.
Save and except in relation to the order sought in paragraph 6 of the Application in an Appeal filed on 27 July 2015 (as amended on 4 August 2015), and which paragraph of the Application has been separately dismissed, that Application be dismissed.
8.
The Application in an Appeal filed on 16 February 2016 be dismissed.
9.
Within twenty-one (21) days of the date of these orders the respondent file and serve any submissions in writing in support of any application for costs of and incidental to the applications referred to in paragraphs (7) and (8) hereof.
10.
Within fourteen (14) days of receiving any submissions in writing pursuant to paragraph (9) hereof the appellant file and serve any written submissions in response.
11.
Within fourteen (14) days of the respondent receiving any written submissions in response pursuant to paragraph (10) hereof the respondent file and serve any written submissions in reply.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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