TEBELLO & CORLA - [2017] FamCAFC 137

FAMILY COURT OF AUSTRALIA

TEBELLO & CORLA

[2017] FamCAFC 137

FAMILY LAW – APPEAL – Final parenting orders – Where there is no appearance by the appellant on the appeal – Where the appellant claims a denial of procedural fairness when not provided with an interpreter – Whether the appellant was entitled to an interpreter – Where adjournment of trial would be contrary to the child’s interests – Where the appellant is competent in written and spoken English – Where the appellant failed to submit to cross-examination or question witnesses – Whether the primary judge misinterpreted or misapplied the Family Law Act 1975 (Cth) – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the appellant has been wholly unsuccessful – Applications for costs granted.

Evidence Act 1995 (Cth) s 30
Family Law Act 1975 (Cth) ss 61DA, 69ZN, 94(2A), 117

Family Law Rules 2004 (Cth) r 22.22(2)(a)

Amari & Qureshi [2017] FamCAFC 122
Kioa v West (1985) 159 CLR 550
Knight v Maclean [2002] NSWCA 314
National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296

APPELLANT:

Mr Tebello

RESPONDENT:

Ms Corla

INDEPENDENT CHILDREN’S LAWYER:

Ms Geysen

FILE NUMBER:

BRC

3393

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

19 July 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Ryan & Cronin JJ

HEARING DATE:

18 July 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 June 2016

LOWER COURT MNC:

[2016] FamCA 429

REPRESENTATION

THE APPELLANT:

No appearance

COUNSEL FOR THE RESPONDENT:

Ms Mayes

SOLICITOR FOR THE RESPONDENT:

Wilson Ryan Grose Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Bertone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Couper Geysen Family & Animal Law

Orders

The appeal be dismissed.
The appellant father to pay the respondent mother’s costs of and incidental to the appeal within one (1) month in the amount of $9,000.00.
The appellant father to pay the Independent Children’s Lawyer’s costs of and incidental to the appeal within one (1) month in the amount of $3,955.00.

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 Tebello & Corla 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 39 of 2016
File Number: BRC 3393 of 2013

Mr Tebello

Appellant

And

Ms Corla

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is an appeal against parenting orders and injunctions made by Tree J on 2 June 2016. The appellant, Mr Tebello…

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: TEBELLO & CORLA [2017] FamCAFC 137
Case: [2017] FamCAFC 137
Decision Date: 19 July 2017

CaseChat Overview and Summary

The appeal was brought by the father, Tebello, against final parenting orders made by the Family Court. The mother, Corla, was the respondent. The father sought to challenge the final parenting orders on the basis that he was denied procedural fairness as he was not provided with an interpreter, and that the primary judge misinterpreted or misapplied the Family Law Act 1975 (Cth). The father did not appear at the appeal hearing. The Full Court was required to determine whether the father was entitled to an interpreter, and whether the primary judge had misinterpreted or misapplied the Family Law Act 1975 (Cth). The Full Court found that the father was not entitled to an interpreter as he was competent in both written and spoken English, and he failed to submit to cross-examination or question witnesses. The Full Court further found that the primary judge had not misinterpreted or misapplied the Family Law Act 1975 (Cth). The Full Court held that any adjournment of the trial would be contrary to the child’s interests. The appeal was dismissed and the father was ordered to pay the mother’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal.

The Full Court found that the father’s argument that he was denied procedural fairness by not being provided with an interpreter was without merit. The father was competent in both written and spoken English and had not demonstrated any difficulty in understanding the proceedings. The father also failed to submit to cross-examination or question witnesses, which further undermined his argument that he required an interpreter. The Full Court also found that the primary judge had not misinterpreted or misapplied the Family Law Act 1975 (Cth). The Full Court held that the primary judge had correctly applied the best interests of the child principle in making the final parenting orders. The Full Court further held that any adjournment of the trial would be contrary to the child’s interests, as the child had already endured a lengthy and complex litigation process.

In conclusion, the appeal was dismissed and the father was ordered to pay the mother’s and the Independent Children’s Lawyer’s costs of and incidental to the appeal. The Full Court found that the father was not entitled to an interpreter and that the primary judge had not misinterpreted or misapplied the Family Law Act 1975 (Cth). The Full Court held that any adjournment of the trial would be contrary to the child’s interests. The orders of the court reflect the outcome of the appeal and the costs associated with the litigation process.

Orders

Orders of the court

The appeal be dismissed.

The appellant father to pay the respondent mother’s costs of and incidental to the appeal within one (1) month in the amount of $9,000.00.

The appellant father to pay the Independent Children’s Lawyer’s costs of and incidental to the appeal within one (1) month in the amount of $3,955.00.

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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