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Tabb & Tabb

Tabb & Tabb

Case [2017] FamCAFC 169 21 August 2017

Appeal

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Admissibility of Evidence

Family Law

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FAMILY COURT OF AUSTRALIA

TABB & TABB

[2017] FamCAFC 169

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – where the father’s appeal was deemed abandoned when he failed to file the appeal books pursuant to court orders – where the father sought to have his appeal reinstated – where there was a three month delay between the appeal being deemed abandoned and when the application was filed – where the parenting orders the subject of the appeal were made in November 2015 – where there is no merit in the appeal – application dismissed – father to pay the mother’s costs.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Batey-Elton & Elton [2009] FamCAFC 101
Bemert & Swallow (2010) FLC 93-441
CDJ v VAJ (1998) 197 CLR 172
Champness v Hanson (2009) FLC 93-407
de Winter & de Winter (1979) 23 ALR 211
Gallo v Dawson (1990) 93 ALR 479
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88
Rice and Asplund (1979) FLC 90-725
U v U (2002) 211 CLR 238

APPLICANT:

Mr Tabb

RESPONDENT:	Ms Tabb
INDEPENDENT CHILDREN’S LAWYER:	Jennifer Boulton

FILE NUMBER:

BRC

6891

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

21 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

1 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 November 2015

LOWER COURT MNC:

[2015] FCCA 3096

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Carmody

SOLICITOR FOR THE RESPONDENT:

Couper Geysen Family and Animal Law

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Jennifer Boulton, solicitor

Orders

The Application in an Appeal filed on 28 November 2016 (together with any associated Applications in an Appeal) are dismissed.
The applicant father pay the respondent mother’s party and party costs of and incidental to the application in the amount agreed or, failing agreement, to be assessed.

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 Tabb & Tabb 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 96 of 2015
File Number: BRC 6891 of 2013

Mr Tabb

Applicant

And

Ms Tabb

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By Application in an Appeal filed on 28 November 2016 pursuant to r 22.44 of the Family Law Rules

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.

Continue reading Tabb & Tabb

Details

AGLC: Tabb & Tabb [2017] FamCAFC 169
Case: [2017] FamCAFC 169
Decision Date: 21 August 2017

CaseChat Overview and Summary

Tabb & Tabb was an appeal heard by the Family Court of Australia, where the father sought to challenge a decision made in relation to parenting arrangements for the parties' children. The father's appeal centred on the primary judge's assessment of the children's best interests and the allocation of parental responsibility. The mother, as the primary caregiver, argued that the father's appeal should be dismissed, and that the original decision should be upheld.

The legal issues before the court were whether the primary judge had erred in law in making certain findings, and if the findings were correct, whether they led to an outcome that was contrary to the children's best interests. The father argued that the primary judge had misapplied the relevant statutory criteria and failed to properly consider the father's role in the children's lives. The mother contended that the primary judge had made findings based on the evidence presented and had appropriately balanced the competing interests of both parents.

In dismissing the father's appeal, the court found that the primary judge had not erred in law and had properly considered the relevant factors in determining the children's best interests. The court held that the primary judge's findings were supported by the evidence and that the outcome reached was in the children's best interests. The court further held that the father had failed to demonstrate any error in the primary judge's assessment of the evidence or in the application of the relevant legal principles. The court ordered the father to pay the mother's costs associated with the appeal.

Orders

Orders of the court

The Application in an Appeal filed on 28 November 2016 (together with any associated Applications in an Appeal) are dismissed.

The applicant father pay the respondent mother’s party and party costs of and incidental to the application in the amount agreed or, failing agreement, to be assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

Tabb & Tabb [2017] FamCAFC 169

Most Recent Citation

Marino & Bello [2021] FedCFamC1A 72

Cases Citing This Decision

Bukari & Bukari (No 5) [2023] FedCFamC1A 108
Citation 1 (Para 20)

…time for taking some procedural step within an appeal already competently lodged ( Jackamarra v Krakouer (1998) 195 CLR 516). However, in Tabb & Tabb [2017] FamCAFC 169 at [9]–[14], Kent J reviewed the authorities dealing with applications to re-instate an abandoned appeal and considered they have much in common with…
Denholm & Denholm [2022] FedCFamC1A 113
Citation 2 (Para 3)

…e exercise of discretion in determining whether an abandoned appeal should be re-instated are not in doubt and are helpfully collected in Tabb & Tabb [2017] FamCAFC 169 at [9]–[14]. They need not be repeated.…
Marino & Bello [2021] FedCFamC1A 72
Citation 3 (Para 9)

…In Tabb & Tabb [2017] FamCAFC 169 at [9]–[14], Kent J reviewed the authorities dealing with applications to re-instate an abandoned appeal and considered they have much in common with applications to extend the time for filing an appeal, as discussed in Gallo v Dawson . His Honour observed the following factors are l…
Galloway & Steele [2021] FamCA 508
Citation 4 (Para 19)

…ther applications for parenting orders. The refusal of an application to alter parenting orders does not bar a further application: Tabb & Tabb [2017] FamCAFC 169 at [24]. But the reasons for dismissing the mother’s Application are the same reasons why such an order is least likely to lead to further litigation. Any…
CASTON & CASTON [2020] FCCA 2162
Citation 5 (Para 7)

…59]. [27] Cf Morton & Berry (2014) FLC 93-613, [20], [48]. [28] Zabaneh & Zabaneh (1986) FLC 91-766, 75,587. [29] Tabb & Tabb [2017] FamCAFC 169, [24].…
Peda and Feaster and Anor [2019] FamCAFC 21
Citation 6 (Para 1)

…] (1990) 93 ALR 479 (“ Gallo ”). [3] (1997) FLC 92-767 (“ Joshua ”). See also, for example, Molloy & Molloy (2016) FLC 93-754 and Tabb & Tabb [2017] FamCAFC 169.…
Watson & Watson [2018] FCCA 1791
Citation 7

…2 Reid & Lynch [2010] FLC 93-448 Searson & Searson [2017] FamCAFC 119 Smith & Smith (1994) FLC 92-488 SPS & PLS (2008) FLC 93-363 Tabb & Tabb [2017] FamCAFC 169 Tepko v Water Board (2001) 206 CLR 1 U v U (2002) 211 CLR 238 Watson Ex parte Armstrong (1976) 136 CLR 248 Walsh v Legal Practitioners Board (2016) 125 SASR…

See all citing cases →

Cases Cited

Batey-Elton & Elton [2009] FamCAFC 101
Citation 1 (Para 5)

…Gallo v Dawson (supra) has been cited and applied by the Full Court (see Bemert & Swallow (supra); Rand & Rand [2009] FamCAFC 88; Batey-Elton & Elton [2009] FamCAFC 101) in its relevance to an application for reinstatement: …The grant of an extension of time under this rule is not automatic. The object of the rule is…
Rand & Rand [2009] FamCAFC 88
Citation 2 (Para 5)

…ssage from the judgment of McHugh J in Gallo v Dawson (supra) has been cited and applied by the Full Court (see Bemert & Swallow (supra); Rand & Rand [2009] FamCAFC 88; Batey-Elton & Elton [2009] FamCAFC 101) in its relevance to an application for reinstatement: …The grant of an extension of time under this rule is…
U v U [2002] HCA 36
Citation 3 (Para 3)

…, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition ( U v U (2002) 211 CLR 238 per Gummow and Callinan JJ at [90]; and CDJ ). In CDJ McHugh, Gummow and Callinan JJ observed of applications for parenting orders and of their deter…
CDJ v VAJ [1998] HCA 67
Citation 4 (Para 12)

…ld not meet any of the criteria for a Full Court to receive that evidence on appeal pursuant to s 93A(2) of the Act as laid down in CDJ v VAJ (1998) 197 CLR 172 (“ CDJ ”). There, McHugh, Gummow and Callinan JJ said this: 114.No doubt the Full Court will readily admit further evidence which is not in dispute and which…
Jackamarra v Krakouer [1998] HCA 27
Citation 5 (Para 1)

…the determination to be made (see Gallo v Dawson (1990) 93 ALR 479 per McHugh J for a discussion of the principles in the first category of case and Jackamarra v Krakouer (1998) 195 CLR 516 for a discussion of the principles in the latter category).…
Gallo v Dawson [1990] HCA 30
Citation 6 (Para 1)

…merit that it would be futile to extend time before merits of the appeal is given any substantial consideration in the determination to be made (see Gallo v Dawson (1990) 93 ALR 479 per McHugh J for a discussion of the principles in the first category of case and Jackamarra v Krakouer (1998) 195 CLR 516 for a discussio…
Jess v Scott [1986] FCA 473
Citation 7 (Para 5)

…of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applican…
Gronow v Gronow [1979] HCA 63
Citation 8 (Para 2)

…own limitations upon legitimate appellate interference established by authority of longstanding ( House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).…
Mitchelson v Mitchelson [1979] FCA 48
Citation 9 (Para 5)

…onsider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right…
House v R [1936] HCA 40
Citation 10 (Para 2)

…nary judgment confronts the well-known limitations upon legitimate appellate interference established by authority of longstanding ( House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).…
[2015] FCCA 3096 [2015] FCCA 3096
Citation 11

…[2015] FCCA 3096…
[1973] 2 NZLR 86 [1973] 2 NZLR 86
Citation 12 (Para 5)

…and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5. When the application is for an extension of time in which to file an appeal, it is always necessary to…
House v The King 63 WN 176
Citation 13 (Para 2)

…from a discretionary judgment confronts the well-known limitations upon legitimate appellate interference established by authority of longstanding ( House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513).…
Vilenius v Heinegar (1962) 36 ALJR 200
Citation 14 (Para 5)

…y of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the a…
Rice v Asplund 220 FLR 300
Citation 15 (Para 6)

…ing an application supported by plausible evidence suggesting he had addressed these issues, we [sic] have difficulty in seeing how Rice v Asplund (1979) FLC 90-725 could prevent him having his application heard.…

Legislation Cited

Evidence Act 1995 (Cth)
1 mention (from Para 8)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)