WARING & PENRY - [2018] FamCAFC 186

FAMILY COURT OF AUSTRALIA

WARING & PENRY

[2018] FamCAFC 186

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the father filed an application to adduce further evidence – where the application was heard in conjunction with the substantive appeal – where the further evidence did not meet any of the criteria for admission of further evidence on appeal by reference to the principles identified in CDJ v VAJ (1998) 197 CLR 172 – application dismissed.

FAMILY LAW – APPEAL – PARENTING – CONSENT ORDERS – where the father sought to appeal final parenting orders made by consent – where the father contended that he “felt under extreme duress” at the time of consenting to the parenting orders – where nothing contained in the transcript of proceedings demonstrated anything to constitute duress on the part of the primary judge and it was not contended any other party was responsible – appeal dismissed – no order as to costs.

Family Law Act 1975 (Cth) ss 68L, 94AAA(3), 94AAA(7)

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Darley & Darley [2016] FamCAFC 10
Robinson and Willis (1982) FLC 91-215; [1982] FamCA 16

APPELLANT:

Mr Waring

RESPONDENT:	Ms Penry
INDEPENDENT CHILDREN’S LAWYER	Patrick Dooley, Dooley Solicitors
FILE NUMBER:	BRC	7008	of	2015

APPEAL NUMBER:

NOA

2018

DATE DELIVERED:

19 September 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 September 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 February 2018

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ashcroft

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Dooley,
Dooley Solicitors

Orders

The father’s Application in an Appeal to adduce further evidence on appeal filed on 5 July 2018 be dismissed.
The appeal against the orders made by Judge Cassidy on 22 February 2018 be dismissed.
There be no order as to costs of the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 25 of 2018
File Number: BRC 7008 of 2015

Mr Waring

Appellant

And

Ms Penry

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

On 22 February 2018 Judge Cassidy made parenting orders[1] by consent on a final basis concerning the child B, born in 2003, who was then 14 years of age and has recently turned 15.…

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 WARING & PENRY

Details

AGLC: WARING & PENRY [2018] FamCAFC 186
Case: [2018] FamCAFC 186
Decision Date: 19 September 2018

CaseChat Overview and Summary

The matter before the Family Court of Australia involved an appeal by the father against final parenting orders made by consent on 22 February 2018 by Judge Cassidy. In addition to the substantive appeal, the father filed an application to adduce further evidence on appeal on 5 July 2018. The application was heard in conjunction with the substantive appeal. The father contended that he "felt under extreme duress" at the time of consenting to the parenting orders.

The court had to determine two main legal issues: whether the application to adduce further evidence should be granted, and whether the appeal against the final parenting orders should succeed. The court considered the principles for admitting further evidence on appeal, as outlined in CDJ v VAJ (1998) 197 CLR 172, and found that the father's evidence did not meet any of the criteria for admission. The court also examined the father's contention of duress but found no evidence in the transcript to support this claim.

The court dismissed the father's application to adduce further evidence, stating that it did not meet the criteria established by CDJ v VAJ. The court also dismissed the appeal against the final parenting orders, finding that there was no evidence of duress and no other party was responsible for any alleged duress. The court made no order as to costs of the appeal.

The court made three orders: the father’s application to adduce further evidence on appeal was dismissed, the appeal against the orders made by Judge Cassidy was dismissed, and there was to be no order as to costs of the appeal.

Orders

Orders of the court

The father’s Application in an Appeal to adduce further evidence on appeal filed on 5 July 2018 be dismissed.

The appeal against the orders made by Judge Cassidy on 22 February 2018 be dismissed.

There be no order as to costs of the 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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