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Caballes & Tallant

Case [2014] FamCAFC 112

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FAMILY COURT OF AUSTRALIA

CABALLES & TALLANT

[2014] FamCAFC 112

FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – CONTRAVENTION – Where the trial judge found that the mother had contravened consent orders on one occasion but not another, but ordered no sanction – Where the trial judge denied procedural fairness to the father by departing from the procedure outlined in r 25B.04 of the Federal Circuit Court Rules 2001 (Cth) and not explaining to the father the process that was to be used at the hearing – Where the trial judge did not allow the father the opportunity to address him on why in relation to the count not established not only had he established a prima facie case, but the mother had failed to establish a reasonable excuse – Appeal allowed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – CHILDREN – PARENTING ORDERS – Where the parties agreed that an order providing for the exchange of information should be set aside – Where the parties proposed a variation of this order – Where the order is in the child’s best interests – Order varied by consent.

Family Law Act 1975 (Cth) Pt VII, Divs 12A, 13A, ss 64B, 69ZM, 69ZN, 69ZQ, 69ZT, 69ZX, 70NAC, 70NAE, 70NAF, 70NBA, 112AD
Family Law Amendment Act 2000 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Federal Circuit Court of Australia Act 1999 (Cth) s 81

Federal Circuit Court Rules 2001 (Cth) rr 1.06, 25B.04

Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
Jackson & Fordham (1995) FLC 92-561
Stevenson v Hughes (1993) FLC 92-363
Vakuata v Kelly (1989) 167 CLR 568

APPELLANT:

Mr Caballes

RESPONDENT:

Ms Tallant

FILE NUMBER:

BRC

5038

2010

APPEAL NUMBER:

2013

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ryan & Kent JJ

HEARING DATE:

10 April 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

18 October 2013

LOWER COURT MNC:

[2013] FCCA 1930

REPRESENTATION

FOR THE APPELLANT:

Mr Caballes in person

FOR THE RESPONDENT:

Ms Tallant in person

Orders

The appeal be allowed.
Order 1 (insofar as it relates to count 1 of the father’s contravention application filed 30 July 2013) and orders 2(a) and 2(b) made by Judge Baumann on 18 October 2013 be set aside.
Paragraph 7 (count 1) of the father’s contravention application filed 30 July 2013 be remitted to the Federal Circuit Court for hearing by a judge other than Judge Baumann.
Order 5 of the orders dated 20 August 2012, by consent, be varied as follows:
Exchange of Information
5) That the mother and father shall:
a)keep the other parent informed in writing (by text message or email or other written communication delivered personally) at all times of their residential address and contact telephone number; and
b)obtain written consent from the other parent…

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: Caballes & Tallant [2014] FamCAFC 112
Case: [2014] FamCAFC 112
Decision Date

CaseChat Overview and Summary

This case concerns an appeal against the decision of the Family Court of Australia, Federal Circuit Court Division. The appeal is brought by Mr Caballes (the father) against the orders of Judge Baumann of the Federal Circuit Court, made on 18 October 2013. The father alleged that Ms Tallant (the mother) contravened a parenting order on two occasions by relocating without informing him of her new residential address. The mother denied the allegations and it was found that she did not contravene the order in relation to the first occasion, but did so in relation to the second. The trial judge ordered no sanctions to be imposed on the mother. The father appealed the decision, arguing that the trial judge did not allow him to present information and evidence, demonstrated bias, did not take into account the severity of the orders breached, introduced unrelated issues, and varied the parenting order without justification. The Full Court found merit in the father's appeal on the basis of procedural unfairness, but rejected the claims of bias, inappropriate variation of the parenting order, and failure to consider the severity of the contraventions. The Full Court allowed the appeal, set aside the orders made by the trial judge, and remitted the father's contravention application for rehearing before a different judicial officer. The Full Court also varied the parenting order in accordance with the agreement of the parties.

Orders