Jebbett and Corey (No. 3)

Case [2020] FamCAFC 233

FAMILY COURT OF AUSTRALIA

JEBBETT & COREY (NO. 3) [2020] FamCAFC 233

FAMILY LAW – APPEAL – CHILDREN – Expert evidence – Where primary judge plainly did not uncritically adopt the Family Report – Where appellant contends no legitimate basis for the exclusion of material – Where basis for its exclusion cannot be determined without the relevant transcript – Where s 106A of the Family Law Act 1975 (Cth) is not limited in scope by s 112AA of the Act – Findings of fact – Where the primary judge did not accept that the child is at a great risk of bullying in mainstream schooling – Weight of Department of Child Safety letter –Weight given to the child’s wishes in relation to home schooling challenges – Appeal dismissed – No order in relation to costs.

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Leave sought to file a further Application in an Appeal – Discharge of Independent Children’s Lawyer – Where delay in filing would have resulted in deferral of the hearing of the appeal – Where material relied upon considered by primary judge from which decision no appeal was brought – Leave refused.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Paediatric report and psychological report – Where if reports were admitted into evidence in the appeal, it is likely that cross-examination would be required – Application dismissed.

FAMILY LAW – APPEAL – APPLICATION FOR STAY OF ORDERS – Refusal of primary judge to stay his orders – Stay appeal futile once substantive appeal fails – Appeal dismissed.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Pt XIII, XIIIA, ss 60CC, 69ZT, 93A(2), 106A, 112AA
Australian Coal & Shale Employees’ Federation v The Commonwealth (1993) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Corey & Jebbett(No. 2) [2018] FamCA 1034
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Ralton & Ralton [2017] FamCAFC 182
Sathra & Sathra [2013] FamCAFC 142
APPELLANT: Ms Jebbett
RESPONDENT: Mr Corey
INDEPENDENT CHILDREN’S LAWYER: Norman & Kingston
FILE NUMBER: BRC 9223 of 2017
APPEAL NUMBERS: NOA
NOA 		54
102 		of
of 		2019
2019
DATE DELIVERED: 21 September 2020
PLACE DELIVERED: Cairns
PLACE HEARD: Brisbane (via video link)
JUDGMENT OF: Ryan, Aldridge & Tree JJ
HEARING DATE: 30 July 2020
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 29 May 2019;
22 October 2019
LOWER COURT MNC: [2019] FamCA 358;
[2019] FamCA 774

REPRESENTATION

THE APPELLANT: In person
COUNSEL FOR THE RESPONDENT: Mr Jones
SOLICITOR FOR THE RESPONDENT: MLDG Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Pendergast
SOLICITOR FOR THE INDEPENDENT CHILDREN’S…

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Details
AGLC
Jebbett and Corey (No. 3) [2020] FamCAFC 233
Case
[2020] FamCAFC 233
Decision Date

CaseChat Overview and Summary

The case before the Family Court of Australia concerns the appeal by the father, Jebbett, against the primary judge's decisions regarding his children's education and welfare. The father challenged the primary judge's determinations which favoured home schooling for the children over mainstream education, as well as the refusal to stay the primary judge's orders. The mother, Corey, supported the primary judge's decisions. The court was tasked with reviewing the primary judge's handling of expert evidence, the weight given to the child's wishes, and the overall findings regarding the children's welfare.

The key legal issues involved whether the primary judge erred in excluding certain evidence, particularly expert reports, and whether the findings made were supported by the evidence. The father argued that the primary judge did not properly consider some evidence and made findings without a legitimate basis. The court had to determine whether the exclusion of evidence was justified and whether the findings on the children's welfare were reasonable. Additionally, the court needed to decide on the weight to be given to the child's expressed wishes about their education and the overall risk assessment regarding bullying in mainstream schooling.

The court found that the primary judge did not uncritically adopt the Family Report and had made findings based on a balanced consideration of all evidence. The court held that the primary judge's exclusion of evidence was not arbitrary and that the basis for the exclusion could be determined without the need for the relevant transcript. The court also found that the primary judge appropriately weighed the child's wishes and the evidence about the risk of bullying. The court dismissed the father's appeal, concluding that the primary judge's findings were reasonable and supported by the evidence. The court also refused leave to file a further application in the appeal, dismissed an application to adduce further evidence, and found that the stay appeal was futile once the substantive appeal failed.

The court made several orders dismissing all extant applications in the appeal, the substantive appeals, and confirming that no order would be made in relation to costs. The form of the orders was subject to their entry in the Court's records.

Orders

Orders of the court

1.

All extant Applications in an Appeal in Appeal No. NOA 54 of 2019 and Appeal No. NOA 102 of 2019 be dismissed.

2.

Appeal No. NOA 54 of 2019 be dismissed.

3.

Appeal No. NOA 102 of 2019 be dismissed.

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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