Abberley & Clement - [2024] FedCFamC1A 81

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abberley & Clement [2024] FedCFamC1A 81

Appeal from: Abberley & Clement (No 2) [2023] FedCFamC2F 1508

Appeal number(s): NAA 351 of 2023

File number: CAC 2180 of 2019

Judgment of: CHRISTIE J

Date of judgment: 13 May 2024

Catchwords: FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Reference by the primary judge to his interlocutory decision in the proceedings without notice to the parties – Where the references to the interim reasons were necessary and apposite – No denial of procedural fairness – Apprehended bias – Where the appellant asserts a fair-minded lay observer would apprehend bias on the part of the primary judge from having relied on earlier adverse findings in the interlocutory decision – Where no specific adverse findings are identified – Adequacy of reasons – Where the reasons chart the pathway by which a conclusion consistent with the evidence was reached – Appeal dismissed – Order for the appellant to pay the respondent’s costs of the substantive appeal in a fixed sum.

Legislation: Family Law Act 1975 (Cth) s 68B

Cases cited:
Bennett and Bennett (1991) FLC 92-191

Spencer & Spencer [2020] FamCAFC 55

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 46

Date of hearing: 6 May 2024

Place: Sydney (via Microsoft Teams)

Counsel for the Appellant: Mr Masters

Solicitor for the Appellant: Vozella Lawyers

Counsel for the Respondent: Ms Davis

Solicitor for the Respondent: KJB Law
ORDERS

NAA 351 of 2023
CAC 2180 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR ABBERLEY

Appellant

AND:
MS CLEMENT

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:
1.Appeal NAA 351 of 2023 is dismissed.
2.The appellant pay the respondent’s costs of the appeal fixed in the sum of $15,000 within 28 days.
3.The application for costs of the Application in an Appeal filed 6 February 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abberley & Clement has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of…

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 Abberley & Clement

Details

AGLC: Abberley & Clement [2024] FedCFamC1A 81
Case: [2024] FedCFamC1A 81
Decision Date: 13 May 2024

CaseChat Overview and Summary

The case of Mr Abberley v Ms Clement, decided by Christie J in the Federal Circuit and Family Court of Australia, involved an appeal against final parenting orders. The appellant, Mr Abberley, contested the final parenting orders made by the primary judge, Ms Clement. The appeal centred on issues of procedural fairness, apprehended bias, and the adequacy of the reasons provided by the primary judge. The court was required to determine whether the primary judge's references to his earlier interlocutory decision without notifying the parties constituted a denial of procedural fairness and whether there was any apprehended bias in the decision-making process.

The court addressed the procedural fairness argument by examining the nature and necessity of the references to the interim reasons. The court found that the references were apposite and necessary for context and history, particularly regarding the mother's anxiety and the risks associated with contact between the child and the father. The court held that there was no denial of procedural fairness as the references did not prejudice the appellant. Regarding the apprehended bias, the court noted that while the appellant argued that a fair-minded observer would perceive bias due to the reliance on earlier adverse findings, no specific adverse findings were identified. Consequently, the court found no grounds for apprehended bias.

The adequacy of the reasons provided by the primary judge was also examined. The court found that the reasons sufficiently charted the pathway by which the conclusion was reached, based on the evidence presented, particularly the mother's acute anxiety and the risks associated with contact between the child and the father. The court concluded that the appeal should be dismissed, and the appellant was ordered to pay the respondent's costs of the appeal in the sum of $15,000 within 28 days. The application for costs of the Application in an Appeal was also dismissed.

Orders

Orders of the court

NAA 351 of 2023

CAC 2180 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ABBERLEY

Appellant

AND:

MS CLEMENT

Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

13 MAY 2024

THE COURT ORDERS THAT:

1. Appeal NAA 351 of 2023 is dismissed.

2. The appellant pay the respondent’s costs of the appeal fixed in the sum of $15,000 within 28 days.

3. The application for costs of the Application in an Appeal filed 6 February 2024 is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The primary judge made several references to the interim reasons in the judgment the subject of appeal and it is useful to set the significant references out here:3.The matter is essentially one of evaluating closely various risks. Many of the risk factors were considered in the interim judgment. They included the Father’s drug-taking during the relationship (in which the Mother participated), his drug-taking post the relationship and his failure to undertake drug-testing as requested by the Independent Children’s Lawyer (“the ICL”), his abuse of the Mother during and after the relationship and stalking of the Mother. The Mother’s acute anxiety arising from the relationship with the Father endures, even while undergoing regular counselling from her psychologist, and is “triggered” even by mention of the Father’s name. The Mother’s anxiety is heightened or further “triggered” by the prospect (or even the thought) of [X] spending any time, or having any indirect contact, with the Father. The Mother further fears the risk of psychological pressure, potentially leading to abuse, of [X] should he start spending time with the Father. And finally, given [X]’s young age, the Mother fears the child, inadvertently, giving information to the Father that would lead him to learn of the Mother’s location. This could lead, in the Mother’s view, to the Father returning to stalking her as he had done in the past, shortly after the relationship ended.(Emphasis added)…[Footnote] 61 Again, I note that many of the competing allegations relating to drug use and domestic violence were set out in detail in the earlier interim judgment. I will not repeat them here but the parties (and anyone else reading these reasons) should have regard to what the interim reasons contain, and my comments found there. They remain apposite here, at least for the purposes of context and history. (Emphasis added)…158.In the light of (a) what was previously addressed in the interim judgment in this matter (here, primarily regarding matters of history and context, especially regarding the Mother’s anxiety concerning contact with the Father), and (b) what has already been commented on in the course of these reasons, I can be somewhat summary in my comments here…(Emphasis added)…164.Finally, there is significant case-law that acknowledges and confirms the central link between the welfare of the “primary-care” parent and the welfare of the child. Conversely, the same general case-law confirms the risk to a child whose primary-care parent suffers significant anxiety and stress as a result of conduct of the other parent. Such is plainly the case here for the reasons set out in the interim judgment, and on the basis of the evidence of Dr [Q] and Ms [HH] here. Put another way, and noted earlier in these reasons, I do not accept the Father’s submissions to the effect that the Mother was either feigning her distress and anxiety or exaggerating it. Such a submission in the light of the history of the matter effectively (a) denies the large amount of evidence, completely adverse to the Father and of his own making, set out by the Court in the interim judgment, and (b) the evidence of both experts (Dr [Q] and Ms [HH]). Such a submissions further undercuts any possible trust the Mother could have in the Father. (Emphasis added)…169.Those parts of the statutory edifice that relate to [the historical] family violence are, again, well documented in the interim judgment and need not be repeated here.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 351 of 2023 CAC 2180 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR ABBERLEY Appellant
AND:	MS CLEMENT Respondent

Appeal from:	Abberley & Clement (No 2) [2023] FedCFamC2F 1508
Appeal number(s):	NAA 351 of 2023
File number:	CAC 2180 of 2019
Judgment of:	CHRISTIE J
Date of judgment:	13 May 2024
Catchwords:	FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Reference by the primary judge to his interlocutory decision in the proceedings without notice to the parties – Where the references to the interim reasons were necessary and apposite – No denial of procedural fairness – Apprehended bias – Where the appellant asserts a fair-minded lay observer would apprehend bias on the part of the primary judge from having relied on earlier adverse findings in the interlocutory decision – Where no specific adverse findings are identified – Adequacy of reasons – Where the reasons chart the pathway by which a conclusion consistent with the evidence was reached – Appeal dismissed – Order for the appellant to pay the respondent’s costs of the substantive appeal in a fixed sum.
Legislation:	Family Law Act 1975 (Cth) s 68B
Cases cited:	Bennett and Bennett (1991) FLC 92-191 Spencer & Spencer [2020] FamCAFC 55 Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs:	46
Date of hearing:	6 May 2024
Place:	Sydney (via Microsoft Teams)
Counsel for the Appellant:	Mr Masters
Solicitor for the Appellant:	Vozella Lawyers
Counsel for the Respondent:	Ms Davis
Solicitor for the Respondent:	KJB Law

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	13 MAY 2024