JABBAR & GADE - [2019] FamCAFC 14

FAMILY COURT OF AUSTRALIA

JABBAR & GADE

[2019] FamCAFC 14

FAMILY LAW – APPEAL – PARENTING – Unacceptable risk of harm – Where the appellant mother asserts the primary judge failed to consider evidence relating to the alleged risk of harm she posed to the children as “fake” – Where findings made by the primary judge to accept video footage and text messages as authentic were open on the evidence – Admissibility of evidence under s 69ZT(1) of the Family Law Act 1975 (Cth) – Where the primary judge was correct to reject the mother’s assertion that video footage was inadmissible because the recording device had not been produced to her for forensic examination – Where video footage relevant and probative – Where no occasion arose for the primary judge to consider whether the respondent father or paternal grandmother were in contempt of court – Where the primary judge correctly exercised discretion – Where grounds of appeal lack merit – Appeal dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge expressly considered the appellant mother’s financial situation when making property settlement orders – Where an incomplete transcript was provided so not all oral evidence adduced at trial was available on appeal – Where it was open on the evidence for the primary judge to make findings which notionally added-back to the parties assets – Where the primary judge correctly exercised discretion – Appeal dismissed.

FAMILY LAW – APPEAL – STAY – Appeal from refusal to grant a stay of the final parenting and property orders – Where the appeal is futile – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appeal was wholly unsuccessful – Where the respondent and the Independent Children’s Lawyer seek costs against the appellant – Where the appellant has modest financial circumstances – Where no circumstance under s 117(2A) of the Act justifies a departure from s 117(1) of the Act – Appellant and respondent to bear their own costs – Appellant ordered to pay the Independent Children’s Lawyer’s costs in a fixed amount.

Evidence Act 1995 (Cth) ss 48, 140, 141
Family Law Act 1975 (Cth) ss 69ZM, 69ZT, 117

Christmas v Nicole Bros Pty Ltd (1941) 41 SR (NSW) 317
Dublin, Wicklow and Wexford Railway Co v Slattery (1878) 3 App Cas 1155
Lane v Registrar of Supreme Court of New South Wales (1981) 148 CLR 245; [1981] HCA 35

APPELLANT:

Ms Jabbar

RESPONDENT:

Mr Gade

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Newcastle Family Law

FILE NUMBER:

NCC

2265

2015

APPEAL NUMBERS:

EA
EA

71
91

of
of

2018
2018

DATE DELIVERED:

8 February 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge, Austin and Gill JJ

HEARING DATE:

26 November 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 May 2018
2 July 2018

LOWER COURT MNC:

[2018] FCCA 1056
[2018] FCCA 2041

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Bithrey

SOLICITOR FOR THE RESPONDENT:

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: JABBAR & GADE [2019] FamCAFC 14
Case: [2019] FamCAFC 14
Decision Date: 8 February 2019

CaseChat Overview and Summary

The appeal, brought by the mother (the appellant), concerns decisions made in family law proceedings involving parenting and property matters, as well as an application for a stay of final orders. The mother appealed against the findings of the primary judge, who had made orders concerning the children's residence and contact with her, as well as the distribution of property between the parties. The primary judge had also refused to grant a stay of the final orders. The mother argued that the primary judge had erred in assessing evidence relating to the risk of harm she posed to the children, the admissibility of certain evidence, and the exercise of discretion in making property settlement orders. The father (the respondent) and the Independent Children's Lawyer sought costs against the mother.

The legal issues before the court included whether the primary judge erred in accepting certain evidence as authentic, whether the primary judge properly exercised discretion in making property settlement orders, and whether the primary judge should have considered whether the father or paternal grandmother were in contempt of court. The court also needed to determine if the mother's appeal was futile and if the costs sought by the respondent and the Independent Children's Lawyer were justified.

The court found that the findings made by the primary judge in accepting video footage and text messages as authentic were open on the evidence. The court held that the primary judge was correct to reject the mother's assertion that the video footage was inadmissible because the recording device had not been produced for forensic examination. The court found that the video footage was relevant and probative. The court also found that no occasion arose for the primary judge to consider whether the father or paternal grandmother were in contempt of court. The court held that the primary judge correctly exercised discretion in making property settlement orders, and the mother's appeal in this regard lacked merit. The court held that the appeal from the refusal to grant a stay of the final orders was futile. Finally, the court held that the mother and the father should bear their own costs, but the mother was ordered to pay the Independent Children's Lawyer's costs in a fixed amount.

The orders made by the court dismissed both appeals and directed the mother to pay the Independent Children's Lawyer's costs in a fixed amount of $4,686, while the mother and the father were to bear their own costs.

Orders

Orders of the court

Appeal No. EA 71 of 2018 is dismissed.

The appellant shall pay the Independent Children’s Lawyer’s costs of and incidental to Appeal No. EA 71 of 2018, fixed in the sum of $4,686.

Each party shall bear his and her own costs of Appeal No. EA 71 of 2018.

Appeal No. EA 91 of 2018 is dismissed.

No order as to costs in Appeal No. EA 91 of 2018.

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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