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”)…

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 Yabon and Tabano

Details

AGLC: Yabon and Tabano [2020] FamCAFC 22
Case: [2020] FamCAFC 22
Decision Date: 31 January 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Yabon and Tabano was brought before the court to address a dispute between the father, the appellant, and the mother, the respondent, regarding their child. The father sought to appeal a decision that had been made in favour of the mother, which involved the relocation of the child to a new location. The court was tasked with deciding whether the father's appeal was valid and if new evidence could be presented that would alter the outcome of the original decision.

The legal issues before the court were whether the father's appeal was within the allowable time frame and if the evidence he sought to present was relevant and admissible. The court also needed to consider if the evidence was of such significance that it could potentially change the outcome of the original decision. The mother argued that the appeal was not within the allowable time frame and that the new evidence was not relevant or admissible.

The court found that the father's appeal was not within the allowable time frame and that the evidence he sought to present was not relevant or admissible. The court noted that the father had failed to provide a sufficient reason for the delay in lodging his appeal and that the evidence he sought to present was not of such significance that it could potentially change the outcome of the original decision. As a result, the court dismissed the father's appeal and upheld the original decision in favour of the mother. The court also dismissed the father's applications to adduce further evidence and for the provision of a transcript. The mother was granted leave to rely on her Summary of Argument filed on 13 January 2020. There was no order as to costs.

Orders

Orders of the court

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.

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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