CAMBROS & CALLERY (No.3)

[2020] FCCA 3250

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAMBROS & CALLERY (No.3) [2020] FCCA 3250

Catchwords:
FAMILY LAW – Parenting – previous unpublished ex tempore reasons for judgment based on an erroneous understanding of events.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR CAMBROS

Respondent: MS CALLERY

File Number: ADC 1304 of 2016

Judgment of: Judge Young

Hearing date: 5 November 2020

Date of Last Submission: 5 November 2020

Delivered at: Darwin

Delivered on: 5 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Pascale

Solicitors for the Applicant: Pascale Legal Barristers & Solicitors

Counsel for the Respondent: Mr Koziol

Solicitors for the Respondent: BK Legal

ORDERS

No orders made

IT IS NOTED that publication of this judgment under the pseudonym Cambros & Callery (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

No. ADC 1304 of 2016

MR CAMBROS

Applicant

And

MS CALLERY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a matter that has been before me a number of times, and it concerns a young child, X, who is now five years old.  The history of the matter is roughly as follows.  On 16 May 2020, it appears that the mother was, according to the police materials produced to the court, the victim of a very serious assault.  I should say that in this matter the mother has not filed an affidavit relating to any of these materials and the reconstruction of the events is essentially without any input from her.  The reason why she has not filed any affidavit material, I assume, is that she takes no real issue with what has been said to have occurred. 

3. In any event, on 28 September 2020, I gave some short reasons referring to an assault on the mother, which apparently took place on 16 May.  It was, according to the mother’s complaint to police, a very serious assault.  The father had made an application on 30 June that the child should live with him following those matters, and in the course of deciding the matter on that date, the mother was called to give evidence and questioned.  She was asked about a text message that her then partner and the assailant had sent to the father, which was to the effect that the father should return the child to the mother immediately, and the text message included the information that the mother was at (the alleged assailant) Mr B’s home at the time.

4. Ms Callery gave oral evidence that she in fact did not attend the home on that occasion but had remained down the road.  After I heard the evidence on 30 June I observed that I was not satisfied that the mother’s evidence about that episode was frank and I remain of that view.  That is after the assault at the end of May, which at the time appeared to me too have occurred on 22 June.

5. When the matter came back on 28 September, regrettably, Mr Koziol as counsel for the mother failed to appear or, rather, appeared as the matter was concluding.  I heard submissions from Ms Pascale on that day, referring to police material.  The police material contained details of the assault on the mother.  It appears that unfortunately I conflated the assault on the mother, of which there was police record of her complaint to police, and the episode on 22 June.  I concluded that, as she had been assaulted on the same day that the text was sent, that her evidence was necessarily false.  Because I conflated the two episodes, the conclusion I drew about the course of events was incorrect, and the conclusion that the mother’s evidence about that was necessarily false did not have a proper foundation. 

6. The conflation of the events and the absence of a foundation for the credibility observations I made on 28 September 2020 are set out in paragraph 7 and 8 of the reasons for judgment I gave that day.  Paragraphs 7 and 8 should be understood as being based on an erroneous understanding of events by me.

7. As I have said, Mr Koziol, counsel for the mother, failed to appear when the matter was called on that day.  He came 35 minutes late, after I had heard submissions and after I had given reasons.  He did attempt to correct what I had said after the event, but the damage was apparently done.  As such in reaching the erroneous conclusion that I expressed in paragraphs 7 and 8, I was not assisted by counsel for the mother.  However, the true state of affairs is correctly and accurately set out in the reasons I gave on 30 June 2020, which also contained at paragraph 13 an adverse credibility assessment of the mother in relation to the evidence that she had given before me on a different but, I am satisfied, correct basis.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 1 December 2020