VARGAS & CLARKE - [2016] FamCAFC 6

FAMILY COURT OF AUSTRALIA

VARGAS & CLARKE

[2016] FamCAFC 6

FAMILY LAW – APPEAL – CHILDREN – Where the appellant appeals against orders dismissing his application for a variation of final parenting orders – Where the appellant asserted the findings and final orders made by the judge who heard the initial trial were wrong and thus the trial judge here erred by relying on those findings – Where the appellant did not appeal against the final orders and it is not open to the appellant to challenge those final orders in this appeal – Where the appellant asserted that the rule in Rice and Asplund (1979) FLC 90-725 did not apply because of what the judge who made the final orders said – Where the appellant misunderstood what was said by that judge and the effect of that – Where the rule in Rice and Asplund still applies – Where there was no error by the trial judge – Appeal dismissed.

FAMILY LAW – APPLICATIONS IN AN APPEAL – Where the father sought leave to issue two subpoenas – Where the material sought to be subpoenaed was not relevant to the appeal – Where the father sought to adduce further evidence consisting of records of attendances upon medical practitioners and property searches relating to the trial judge, Principal Registrar and other women involved in the proceedings – Where the material was not relevant to the appeal – Where the father sought to present a letter allegedly removed from the court file and material subpoenaed from the Department of Education and Training – Where the material was not relevant to the appeal – Applications dismissed.

FAMILY LAW – COSTS – Where the respondent mother sought an order for costs – Where no order for costs is made.

Family Law Act 1975 (Cth) – s 117(1)

Rice and Asplund (1979) FLC 90-725

APPELLANT:

Mr Vargas

RESPONDENT:

Ms Clarke

FILE NUMBER:

2015

APPEAL NUMBER:

BRC

10951

2011

DATE DELIVERED::

1 February 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Murphy & Kent JJ

HEARING DATE:

1 February 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

24 April 2015

LOWER COURT MNC:

[2015] FamCA 292

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Slade Jones

SOLICITOR FOR THE RESPONDENT:

WP Lawyers

Orders

The Applications in an Appeal filed by the appellant father on 5 August 2015 and 11 December 2015 be dismissed.
The appeal be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vargas & Clarke 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 BRISBANE

Appeal Number: NA 36 of 2015
File Number: BRC 10951 of 2011

Mr Vargas

Appellant

And

Ms Clarke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Strickland J

Introduction

By Notice of Appeal…

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 VARGAS & CLARKE

Details

AGLC: VARGAS & CLARKE [2016] FamCAFC 6
Case: [2016] FamCAFC 6
Decision Date: 1 February 2016

CaseChat Overview and Summary

The appeal in Vargas & Clarke involved the father, the appellant, contesting the dismissal of his application for a variation of final parenting orders. The matter was heard in the Family Court of Australia. The father sought to challenge the findings and orders made by the initial trial judge, arguing that the trial judge in the current appeal had erred in relying on those findings. Additionally, the father attempted to introduce new evidence through subpoenas and additional records, which the court found to be irrelevant to the appeal.

The central legal issues before the court were whether the father's appeal was valid given that he did not appeal the final orders directly and if the rule in Rice and Asplund applied to prevent the current appeal. The court also needed to determine if the father's attempts to introduce new evidence were permissible and relevant to the appeal. The father argued that the rule did not apply due to misinterpretations of the trial judge's statements, but the court found these misinterpretations to be incorrect. Consequently, the rule in Rice and Asplund remained applicable, and there was no error by the trial judge.

The court dismissed the appeal, ruling that the father could not challenge the final orders indirectly through this appeal. It also rejected the father's applications to issue subpoenas and present additional evidence, finding them irrelevant. Finally, the court did not make an order for costs, leaving the respondent mother to bear her own costs.

Orders

Orders of the court

1. The Applications in an Appeal filed by the appellant father on 5 August 2015 and 11 December 2015 be dismissed.

2. The appeal be dismissed.

3. There be no order as to costs.

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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