CHALLIS & CHALLIS

[2017] FamCAFC 240

FAMILY COURT OF AUSTRALIA

CHALLIS & CHALLIS [2017] FamCAFC 240

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Allegations of historical sexual abuse – The respondent concedes the appeal should be allowed and remitted for rehearing before a judge other than the primary judge – The parties seek costs certificates for the appeal and the rehearing – Where the Full Court is satisfied of error sufficient to support the making of the orders sought by the parties – Appeal allowed – Costs certificates issued

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Challis

RESPONDENT: Ms Challis

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: LEC 497 of 2015

APPEAL NUMBER: NA 25 of 2017

DATE DELIVERED: 13 November 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Thackray, Strickland & Murphy JJ

HEARING DATE: 13 November 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 2 June 2017

LOWER COURT MNC: [2017] FCCA 1258

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Mason

SOLICITOR FOR THE APPELLANT: Universal Law

COUNSEL FOR THE RESPONDENT: Mr Cameron

SOLICITOR FOR THE RESPONDENT: McVittie Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Theobald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The appellant be granted leave to rely upon the Further Amended Notice of Appeal dated 1 October 2017.

2. The respondent be granted leave to rely upon the late filed Summary of Argument. 

3. The appeal be allowed.

4. The matter be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Vasta.

5. Paragraph 4 of the orders made by Judge Vasta on 2 June 2017 be set aside.

6. The remaining orders made by Judge Vasta on 2 June 2017 be set aside upon the matter being determined on either an interim or final basis by the Federal Circuit Court, whichever is the earlier.

7. The Court grants to the appellant and the respondent costs certificates pursuant to the provisions of s 9 and s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) respectively, being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant and the respondent in respect of the costs incurred by each of them in relation to the appeal.

8. The Court grants to each of the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney General to authorise a payment under that Act to each of them in respect of the costs incurred by each of them in relation to the rehearing.

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 Challis & Challis 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 25 of 2017
File Number: LEC 497 of 2015

Mr Challis

Appellant

And

Ms Challis

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

1. Before the proceedings conclude it is appropriate that I make some brief observations in relation to what has transpired here today. 

2. This matter was listed for hearing on the basis of the further amended notice of appeal, for which leave was given at the commencement of the hearing.  The grounds of appeal comprised a miscellany of alleged errors said to have been made by the primary judge.

3. We received written submissions from all parties so the Court had a thorough understanding of the matter prior to the commencement of the hearing.  In those submissions, the Independent Children’s Lawyer (“ICL”) readily, and in my view properly conceded, that there were errors as identified by the appellant in his submissions.  Nevertheless, by one means or another, an effort was made by the ICL and the respondent to defend his Honour’s decision.

4. However, in the course of oral argument, Mr Cameron, counsel for the respondent, made a series of very proper concessions in what I consider was in accordance with the finest traditions of the bar.  He accepted there were significant difficulties with elements of his Honour’s reasons which, having been identified, inevitably led to the outcome the parties have now agreed.  It is to the great credit not only of counsel but also the parties to have come to this agreement.  The parties themselves may have difficulty in understanding all that has transpired, but what has occurred today is entirely appropriate because there were insurmountable difficulties with his Honour’s reasons.

5. First, his Honour made a positive finding of sexual abuse against the appellant.  That is a finding of very great gravity.  That finding was neither sought by the parties nor was it open on the evidence before his Honour.

6. Secondly, some specific findings were made, which were, with respect to his Honour, who gave ex tempore reasons for judgment, contrary to the evidence.

7. There may well have been other errors as claimed; however, given that the matter is to be remitted for rehearing by another judge, it would be inappropriate to express any other opinion as to the validity of those complaints, as what I have said already is sufficient to justify the making of the orders that have just been made.

8. I speak with the authority of my colleagues in the remarks I have made.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 13 November 2017.

Associate:

Date: 16/11/17