Alkaios & Shams

Case [2023] FedCFamC1A 212

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Alkaios & Shams [2023] FedCFamC1A 212

Appeal from: Shams & Alkaios [2023] FedCFamC2F 1029
Appeal number: NAA 253 of 2023
File number: MLC 13363 of 2021
Judgment of: SCHONELL J
Date of judgment: 30 November 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant contended that the primary erred in failing to accord procedural fairness through relying on extraneous material not in evidence – Where the extraneous material was first referred to in the judgment and the appellant had no opportunity to respond – Where the extraneous material was used to draw adverse inferences – Applicability of s 144 of the Evidence Act 1995 (Cth) – Where the Court cannot conclude that the primary judge would have made the same findings without reference to the extraneous material – Error of law established – Where the appellant contended that the primary judge erred in findings of fact pertaining to family violence perpetrated by the appellant against one of the children – Where the primary judge’s finding that the appellant was the perpetrator of family violence and in rejecting the single expert’s evidence was based on an erroneous finding – Where such erroneous finding of fact informed the primary judge’s conclusions as to the primary considerations – Error established – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to both parties.
Legislation:

Evidence Act1995 (Cth) s 144

Family Law Act 1975 (Cth) s 60CC

Cases cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Capic v Ford Motor Company of Australia Pty Ltd (2021) 154 ACSR 235; [2021] FCA 715

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Crabman & Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146

Director of Public Prosecutions v Gramelis [2010] NSWSC 787

Kent v Wotton & Byrne Pty Ltd (2006) 15 Tas R 264; [2006] TASSC 8

Lamereaux and Noirnot (2008) FLC 93-364; [2008] FamCAFC 22

Prentice v Cummins (No. 5) (2002) 124 FCR 67; [2002] FCA 1503

R v Magoulias [2003] NSWCCA 143

Shell & Armel [2022] FedCFamC1A 83

Number of paragraphs: 45
Date of hearing: 21 November 2023
Place: Sydney
Counsel for the Appellant: Ms Mallett KC
Solicitor for the Appellant: Westminster Lawyers
Counsel for the Respondent: Ms Colla
Solicitor for the Respondent: Brendan Rothschild Legal Group

ORDERS

NAA 253 of 2023
MLC 13363 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR ALKAIOS

Appellant
AND:

MS SHAMS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.Orders 3, 4, 5 and 14 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2023 are set aside.

3.The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia…

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Details
AGLC
Alkaios & Shams [2023] FedCFamC1A 212
Case
[2023] FedCFamC1A 212
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Alkaios appealed against the decision of Shams in a parenting case. The central dispute was over the relocation of their two children to Queensland and the subsequent care arrangements. The primary judge had made orders that the children return to Melbourne and live with the appellant, while the respondent was permitted visitation. The appellant challenged these orders on several grounds, including procedural fairness and the primary judge's findings on family violence.

The legal issues before the court included whether the primary judge failed to adhere to procedural fairness by referencing extraneous material not presented in evidence, and whether the primary judge erred in finding that the appellant was the perpetrator of family violence against one of the children. The court had to determine if these errors warranted a new hearing of the matter.

The court found that the primary judge did indeed err by relying on extraneous material that was not in evidence, which influenced adverse inferences drawn against the appellant. This constituted a breach of procedural fairness. Additionally, the court held that the primary judge's findings regarding family violence were flawed, as they were based on an erroneous finding of fact. These errors materially affected the primary judge's conclusions on the best interests of the children. Consequently, the appeal was allowed, and the matter was remitted for rehearing by a different judge.

The court issued costs certificates to both parties, recognising the costs incurred in the appeal and the anticipated costs of the rehearing. The specific orders included setting aside certain findings and conclusions of the primary judge, remitting the matter for rehearing, and granting costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

Orders

Orders of the court

NAA 253 of 2023

MLC 13363 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ALKAIOS

Appellant

AND:

MS SHAMS

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Orders 3, 4, 5 and 14 of the orders made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2023 are set aside.

3. The matter is remitted for rehearing to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.

4. The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.

5. The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in the appeal.

6. The appellant and respondent are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

As their Honours observed in Crabman & Crabman (No 2) (2020) 61 Fam LR 191:16.Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]). BACKGROUND The parties commenced cohabitation in or around October 2012. The primary judge found that separation occurred on 7 February 2017 (at [153]). The parties have two children together, namely X who is 10 years of age and Y who is 7 years of age. The parties’ relationship is marked by a high degree of parental conflict. The respondent contended that the appellant was the perpetrator of family violence against her and the children. The appellant largely denied this contention. The primary judge found that that the appellant was controlling as well as physically and verbally abusive towards the respondent and the children (at [42], [48], [58] and [69]). Following separation, the children lived with the respondent and spent time with the appellant, which eventually progressed to equal time. Both parties and the children lived in Melbourne. On 29 October 2021, the respondent sought the appellant’s consent to relocate to Queensland with the children and subsequently enrolled the children into a school in Queensland without the appellant’s knowledge or consent. On 19 November 2021, the appellant indicated to the respondent that he opposed the relocation. On 1 December 2021, the respondent commenced proceedings seeking orders permitting her to relocate to Queensland with the children. In December 2022, a Family Report issued that included a recommendation that the children be permitted to relocate with the respondent to Queensland. In January 2023, the respondent and children travelled to Queensland. On 8 January 2023, being the day that the children were to return to the appellant, the respondent informed the appellant that she would not be returning them. On 10 January 2023, the appellant filed an Application in a Proceeding seeking the return of the children. On 15 February 2023, orders were made by a senior judicial registrar that the respondent return the children to Melbourne and, in the event that the respondent did not return to Melbourne, the children live with the appellant and spend time with the respondent. The children were subsequently returned to Melbourne and the appellant assumed their primary care. The respondent remained living in Queensland and spent time with the children in accordance with the orders of 15 February 2023. In June 2023, an updated Family Report issued that included a recommendation that the children remain in the appellant’s primary care and not be permitted to relocate.

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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