Yabon and Tabano - [2020] FamCAFC 22

FAMILY COURT OF AUSTRALIA

YABON & TABANO

[2020] FamCAFC 22

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from interim parenting orders which changed the residence of the children and provided for no time with the father pending trial – Where the primary judge found that exposure to the father’s negative views of the mother amounted to unacceptable risk of harm to the children – Where the primary judge largely relied on a report of the children’s psychologist – Where the father challenges the factual basis for the orders and alleges the children are at risk in the mother’s household – Where the matter was subsequently transferred to the Family Court of Australia and listed for trial in March 2020 – Where there is no utility in this appeal given the proximity of the trial – Where the issues raised by the father can only be resolved at a trial – Appeal dismissed.

Family Law Act 1975 (Cth) Pt VII, ss 68L, 94AAA(3)

Federal Circuit Court Rules 2001 (Cth) r 8.02

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Tabano & Yabon [2019] FamCA 952

APPELLANT:

Mr Yaban

RESPONDENT:

Ms Tabano

INDEPENDENT CHILDREN’S LAWYER:

Gary Rolfe Solicitors

FILE NUMBER:

BRC

8367

2016

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

31 January 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

20 January 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

26 July 2019

LOWER COURT MNC:

[2019] FCCA 2732

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Dodd

SOLICITOR FOR THE RESPONDENT:

Jurgensen Horne Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Gary Rolfe Solicitors

Orders

The Respondent Mother be given leave to rely on her Summary of Argument filed on 13 January 2020.
The Appellant Father’s Application in an Appeal to adduce further evidence filed on 6 December 2019 be dismissed.
The Appellant Father’s Application in an Appeal for the provision of transcript filed on 6 December 2019 be dismissed.
The appeal be dismissed.
There be no order as to costs.

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 Yabon & Tabano 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 80 of 2019
File Number: BRC 8367 of 2016

Mr Yabon

Appellant

And

Ms Tabano

Respondent

REASONS FOR JUDGMENT

Mr Yabon (“the father”) and Ms Tabano (“the mother”) are engaged in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning their three children aged 13 years, 12 years and nine years respectively.
Those proceedings involve serious issues central to the determination of the best interests of the children. The nature of those issues can only be resolved at a trial where evidence can be fully and properly tested and issues of disputed fact resolved. Without being exhaustive, the serious issues include the father’s case concerning the risk of sexual abuse to one or more of the children posed by the mother’s partner; and the mother’s case concerning the risk of emotional and psychological harm to the children posed by their exposure to the father’s negative views of the mother.
The interests of the children in the proceedings are represented independently of the parties by a lawyer appointed for that purpose pursuant to s 68L of the Act (“the ICL”). One of the added complexities of the case is that it is clear that the father has issues surrounding the ICL’s performance of the statutory role.
On 26 July 2019, a judge in the Federal Circuit Court of Australia (“the FCC”) made interim parenting orders which provided for, in summary:
a)The children to live with the mother;
b)The mother to have sole parental responsibility;
c)The father to spend no time with or communicate with the children;
d)The children to resume counselling with Dr O; and
e)An order requiring an urgent psychiatric assessment of the father.
Those interim orders effected a change in primary residence for the children who, from February 2018, had lived with the father pursuant to interim orders then made by another judge of the FCC.
The interim orders made on 26 July 2019 were made on the basis, in summary, that the primary judge considered there to be an unacceptable risk of psychological harm to the children should they continue to reside with the father due to his overtly negative views of the mother. That finding was largely based on a report prepared by the children’s counsellor, Dr O.
A profoundly troubling feature of these proceedings is that since the orders of 26 July 2019 were made, the eldest child has absconded from the mother’s household and care on multiple occasions. That, as will be further discussed, is a central reason for the trial of these proceedings being expedited.
On 2 September 2019, the father filed an Application in an Appeal to extend time to file his Notice of Appeal. That application was granted on 17 September 2019 and on 9 October 2019 the father filed his Notice of Appeal from the orders of 26 July 2019. An Amended Notice of Appeal was filed on 6 December 2019.
The jurisdiction in respect of this appeal is to be exercised pursuant to s 94AAA(3) of the Act.
Whilst the mother’s Summary of Argument for this appeal was filed late and outside the times directed, I gave leave for it to be relied upon in circumstances where the delay was not substantive and it caused no identifiable prejudice to the father.

Lack of any practical utility in this appeal

The events which have transpired in these proceedings since the father filed his Notice of Appeal, now to be discussed, render the conclusion that there is now no practical utility in the father’s appeal from the subject interim parenting orders made on 26 July 2019.
I emphasise at the outset of this discussion that this conclusion, and nothing in these reasons for judgment, nor in the outcome reflected in the orders made, can legitimately be interpreted as meaning that it has been determined that there was never any merit in the father’s appeal. The point of emphasis is that the lack of any utility in this appeal, for the reasons now discussed, renders obsolete the need to consider and determine the merits of this appeal.
On 1 November 2019, in dealing with an application for a recovery order to be made with respect to the parties’ oldest child who had absconded from the mother’s care, the primary judge made a series of interim orders but, importantly, those orders included an order made pursuant to r 8.02 of the Federal Circuit Court Rules 2001 (Cth) that the parenting proceedings be transferred to the Family Court of Australia at Brisbane (“the Family Court”).
On 10 December 2019, a trial judge of this Court, Forrest J, made orders including, importantly, orders for these proceedings to be listed for a five day trial commencing on Monday 30 March 2020.
On the hearing of this appeal on 20 January 2020, I sought to explain to the father that in circumstances where, even if his appeal from interim parenting orders were to succeed, the result would be an order for a remitter of the proceedings for a further interim hearing in the circumstances presented by this case (Allesch v Maunz (2000) 203 CLR 172); and such a hearing would be unlikely to occur before the listed trial to commence on 30 March 2020; that this appeal lacked any utility. For his part, the father contended that even if the review of the interim orders made on 26 July 2019 could not take place until even long after the trial of the proceedings, the father would still seek to pursue that course.
I also sought to explain to the father that in circumstances where the proceedings are now listed by Forrest J for trial and are in his Honour’s docket, any interim application would be listed before Forrest J. As I sought to emphasise to the father, on 10 December 2019 Forrest J was called upon to determine an application for a recovery order. In delivering his reasons for judgment on 10 December 2019, it is clear that his Honour considered the father’s application to discharge all existing interim orders and to make orders that the children live with him and spend supervised time with the mother and her partner.[1] At [18] and [19] of those reasons, his Honour said:
18.This case is truly a concerning one with a very troubling history that I will not go into in these reasons. I am deeply concerned that it is reported that [the eldest child] says she will self-harm if she is returned to the care of her mother and step-father. Nevertheless, against the background of this case, the findings of [the primary judge], the submissions of the ICL and the unsubstantiated findings of the Queensland Police Service and the Department of Child Safety, I consider that it would be a knee-jerk response simply to dismiss the application for a Recovery Order and to order that [the eldest child] live with her father. There are so many issues here that need to be considered properly in the context of a trial with cross-examination of witnesses, including expert witnesses.
19.I intend to make orders, yet again, for [the eldest child’s] return to her mother’s care, but I will also be listing this matter for a trial at the end of March and the beginning of April so that the parenting dispute involving some very difficult issues can be heard and determined as quickly as my diary commitments and the need for the matter to be properly prepared by the parties can accommodate. A report is awaited from Dr M, Consultant Psychiatrist, into the state of the mental health of each of the parents. An updated Family Report will also be required from the Family Report writer, with particular attention to be paid by him to the views expressed by [the eldest child] and his opinions about the matters that would determine what weight might be attributed to the views she expresses.
[1] See, Tabano & Yabon [2019] FamCA 952 at [8] and following.
As those reasons reflect, an updated Family Report is being prepared and arrangements have also been made for there to be an expert report from a Consultant Psychiatrist concerning the mental health of each of the parents, and for those reports to form part of the evidence to be considered at the trial.
Most fundamentally, what Forrest J’s reasons reveal is that it would be pointless for an order to be made for Forrest J to again consider the question of any interim orders pending the trial, given that his Honour determined that precise question on 10 December 2019. By the time any further interim application could be listed, the trial would either be imminent or have already been held.
As is also reflected in Forrest J’s reasons for judgment, since the interim orders of 26 July 2019 were made there have been four interim hearings conducted across both the FCC and the trial division of the Family Court, culminating in the interim hearing before Forrest J. None of those hearings resulted in any substantive variation of the 26 July 2019 orders and none of those determinations are the subject of any appeal.
As was also explained to the father, once the trial proceeds before Forrest J, if a point is reached where the children’s best interests demand this, prior to the conclusion of the trial, or at its conclusion pending delivery of reasons for final judgment, further interim orders can be made if his Honour determines that to be an appropriate step.
As observed by Forrest J, the issues in these proceedings “need to be considered properly in the context of a trial with cross-examination of witnesses, including expert witnesses”. The father raised concerns about the trial not actually proceeding as currently listed to commence on 30 March 2020, given his experience in the FCC of listed trials not proceeding. However, the listing of this matter for trial has been expedited in the Family Court. In the highly unlikely event that, for some presently unforeseen reason, Forrest J was not able to commence the trial on the listed date, the reality is that steps would be taken in the Family Court to list the trial urgently, before another judge if necessary.
In my judgment, the lack of any utility in this appeal dictates the conclusion that the appeal must be dismissed.
For these reasons the appeal and any extant applications in the appeal ought be dismissed.
No party sought any order for costs in respect of this appeal and there will be no order.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 31 January 2020.

Associate:

Date: 31 January 2020