Tallant & Kelsey

Case [2016] FamCAFC 207

FAMILY COURT OF AUSTRALIA

TALLANT & KELSEY [2016] FamCAFC 207

FAMILY LAW – APPEAL – JURISDICTION – Right of appeal – Where the primary judge overruled an objection against the admission into evidence of an expert’s report – Where ruling was drawn up in the form of an order and reasons were provided.

FAMILY LAW – WORDS AND PHRASES – Meaning of “decree” and “judgment” – Whether decision to admit an expert’s report into evidence is a decree – Where ruling did not determine the proceedings or a part of them – Where the decision is not a decree – Where decision not capable of appeal – Application for leave to appeal dismissed.

FAMILY LAW – COSTS – Where the ICL seeks costs of the appeals – Where applicant wholly unsuccessful – Costs ordered.
Australian Constitution (Cth): s 73
Family Law Act 1975 (Cth) : ss 4(1), 94, 94AA, 117
Family Law Regulations 1984 (Cth): reg 15A(2)
Family Law Rules 2004 (Cth): r 15.64(b), (c)
A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
AH Toy v Registrar of Companies (1985) 10 FCR 280
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45
Helbig & Rowe [2014] FamCAFC 179
In the matter of P (a child); Separate Representative (1993) FLC 92-376
Lawrance v The Commonwealth of Australia [2007] FCA 1524
Medlow & Medlow (2016) FLC 93-692
Moller v Roy (1975) 132 CLR 622
Sahadi & Savva and Anor (2016) FLC 93-704
APPLICANT: Ms Tallant
RESPONDENT: Mr Kelsey
INDEPENDENT CHILDREN’S LAWYER: Mills Oakley Lawyers
FILE NUMBER: PAC 3364 of 2013
FIRST APPEAL NUMBER: EAA 102 of 2016
SECOND APPEAL NUMBER: EAA 103 of 2016
DATE DELIVERED: 26 October 2016
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ainslie-Wallace, Ryan & Cronin JJ
HEARING DATE: 26 October 2016
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 6 June 2016; 10 June 2016
LOWER COURT MNC: [2016] FamCA 538;
[2016] FamCA 560

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Goodchild
SOLICITOR FOR THE APPLICANT: Women’s Legal Service NSW
FOR THE RESPONDENT: No appearance for or on behalf of the respondent
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Beck
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mills Oakley Lawyers

Orders

  1. By consent, the orders of Hannam J made on 3 September 2015 be added to the appeal books.

  2. The appeal against Order 2 of Hannam J made on 6 June 2016 is dismissed.

  3. The appeal against Order 19 of Hannam J made on 10 June 2016 is dismissed.

  4. The applicant pay the Independent Children’s Lawyers costs of and incidental to the appeal in the sum of $4,725.

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 Tallant & Kelsey has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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AGLC
Tallant & Kelsey [2016] FamCAFC 207
Case
[2016] FamCAFC 207
Decision Date

CaseChat Overview and Summary

The matter of Tallant & Kelsey involved an appeal against decisions made by the Family Court of Australia. The central dispute pertained to the admission of an expert's report into evidence and the subsequent ruling that this admission was not a "decree" within the meaning of the Family Law Act, thereby not being appealable. The appeal was brought before the Family Court of Australia, which had to determine whether the admission of the expert's report constituted a "decree" or "judgment" that could be appealed.

The court was required to address two primary legal issues. First, it needed to interpret the meaning of "decree" and "judgment" as used in the Family Law Act, specifically whether the decision to admit an expert’s report into evidence constituted such a decree. Second, the court had to consider the effect of the ruling on the proceedings and determine if it amounted to a final decision on the merits of the case. The court needed to ascertain whether the ruling determined the proceedings or a part of them, and if it did not, whether it was a decree and hence appealable.

The Family Court of Australia concluded that the decision to admit an expert’s report into evidence did not constitute a "decree" within the meaning of the Family Law Act. The court held that the ruling did not determine the proceedings or any part of them. Since the decision was not a decree, it was not capable of appeal. Consequently, the appeal was dismissed. Additionally, the court ordered that the applicant, who was wholly unsuccessful in their appeal, pay the Independent Children's Lawyer's costs of and incidental to the appeal.

In summary, the Family Court of Australia dismissed the appeal against the primary judge's rulings, holding that the decision to admit an expert’s report into evidence did not amount to a decree or judgment under the Family Law Act. The court also ordered the applicant to pay the costs of the appeal to the Independent Children's Lawyer.

Orders

Orders of the court

1.

By consent, the orders of Hannam J made on 3 September 2015 be added to the appeal books.

2.

The appeal against Order 2 of Hannam J made on 6 June 2016 is dismissed.

3.

The appeal against Order 19 of Hannam J made on 10 June 2016 is dismissed.

4.

The applicant pay the Independent Children’s Lawyers costs of and incidental to the appeal in the sum of $4,725.

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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