Andalis & Andalis

Case [2021] FamCAFC 77

FAMILY COURT OF AUSTRALIA

Andalis & Andalis [2021] FamCAFC 77

Appeal from: Andalis & Andalis [2021] FCCA 207
Appeal number(s): EAA 15 of 2021
File number(s): NCC 3980 of 2020
Judgment of: RYAN J
Date of judgment: 19 May 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders for return of children – Where the appellant asserts the primary judge focussed on her conduct in moving the children and not on the best interests of the children – Where reasons should be read in entirety – Where the appellant asserts the primary judge failed to give “proper, genuine and realistic consideration” of the respondent’s further alternate proposal – Appellant bound by conduct of her case – Whether the conclusion as to the children’s best interests was reasonably open – Appeal dismissed – Appellant to pay costs of the respondent for the appeal upon receiving property settlement.  
Legislation:  Family Law Act 1975 (Cth) Pt VII, ss 60CA, 94AAA(3).
Cases cited:

Akston & Boyle (2010) FLC 93-456; [2010] FamCAFC 56

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Division: Appeal Division
Number of paragraphs: 25
Date of hearing: 12 May 2021
Place: Newcastle
Solicitor for the Appellant: Dillon-Smith Lawyers
Counsel for the Appellant: Mr Coleman SC with Mr Battley
Solicitor for the Respondent: Delaney Roberts Family Lawyers
Counsel for the Respondent: Mr Bithrey

ORDERS

EAA 15 of 2021
NCC 3980 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS ANDALIS

Appellant
AND:

MR ANDALIS

Respondent

ORDER MADE BY:

RYAN J

DATE OF ORDER:

19 MAY 2021

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The mother pay the father’s costs of the appeal of $5,897.22.

3.Payment by the mother of the father’s costs at Order (2) above, is payable at the same time the mother receives her share of the parties’ property settlement.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Andalis & Andalis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

RYAN J:

  1. By an Amended Notice of Appeal filed on 6 May 2021, Ms Andalis (“the mother”) appeals from a suite of interim parenting orders made by a judge of the Federal Circuit Court of Australia on 29 January 2021.  The orders relate to the parties’ four children and relevantly, required the mother to re-establish…

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AGLC
Andalis & Andalis [2021] FamCAFC 77
Case
[2021] FamCAFC 77
Decision Date

CaseChat Overview and Summary

Ms Andalis, the appellant, appealed against the interim parenting orders made by the primary judge that required the return of the children to City B. The appeal was dismissed by Ryan J in the Appeal Division of the Family Court of Australia. The appeal was based on three grounds, the first being that the primary judge erred by focusing on the appellant’s conduct in moving the children from City B to Town D, rather than on the children’s best interests. The second ground was that the primary judge was not reasonably open to finding that the children’s best interests required their return to City B. The third ground was that the primary judge failed to give proper, genuine and realistic consideration to the merits of the father’s proposal that the children live with the mother in Town D and spend alternate weekends with him.

The court found that the conclusion as to the best interests of the children was reasonably open. It noted that the appellate court must give respect and weight to the conclusion of the primary judge, especially where the primary judge has the advantage of seeing and hearing the parties give their evidence. The court found that the primary judge did not make inconsistent findings in relation to the children spending time with the father and that the mother’s analysis of the reasons for judgment could not be sustained. The court found that the primary judge considered all of the relevant factors and that the conclusion as to the children’s best interests was reasonably open. The appeal was dismissed, and the mother was ordered to pay the father’s costs of the appeal of $5,897.22, payable at the same time the mother receives her share of the parties’ property settlement.

Orders

Orders of the court

EAA 15 of 2021

NCC 3980 of 2020

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS ANDALIS

Appellant

AND:

MR ANDALIS

Respondent

ORDER MADE BY:

RYAN J

DATE OF ORDER:

19 MAY 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The mother pay the father’s costs of the appeal of $5,897.22.

3. Payment by the mother of the father’s costs at Order (2) above, is payable at the same time the mother receives her share of the parties’ property settlement.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 3 has not been established.Was the conclusion as to the best interests of the children reasonably open? Before Ground 2 is discussed, it is necessary to address the submission by the mother that this Court could draw such inferences from the facts as it considered were appropriate. Or put differently that this Court could substitute its own evaluation of the facts for that undertaken by the primary judge. It is uncontroversial that where the facts are undisputed or, having been disputed, are established by the primary judge, an appellate court may then decide on the proper inference to be drawn from those facts. However, in so doing the appellate court must give respect and weight to the conclusion of the primary judge (Warren v Coombes (1979) 142 CLR 531 at 552). Furthermore, in a case where the primary judge has the advantage of seeing and hearing the parties give their evidence (which does not apply here), even greater appellate restraint with respect to interference with the judge’s findings is demanded. The approach is as set out in Lee v Lee (2019) 266 CLR 129 at [55]). Possibly because of these limitations, the mother sought to establish that the primary judge made inconsistent findings in relation to the children spending time with the father, in particular whether orders as to time would require that W and X see him. The asserted error derives from [97] of the reasons for judgment where the primary judge said:Obviously, I am not going to make an order that [W] and [X] not be forced to spend time with the father against their wishes. In relation to [97] and the orders which provide for all children to regularly spend time with the father, the mother contended:16The Trial Judge determined, at paragraph 97 of her Reasons, that she would not make an order that [W] and [X] be forced to spend time with the father against their wishes. Notwithstanding that decision, Her Honour, in fact, made such an order: see orders 1 to 3 made on 29 January 2021. This is clearly a mistake. 17The error, however, raises the pivotal question of whether– given the Trial Judge’s intention to exclude [W] and [X] from the orders – her reasoning was corrupted. Did the Trial Judge, for example, consider whether if only two of the parties’ children – being the younger two, now aged five and eleven – should spend time with the father sans their siblings? Certainly, it was clear elsewhere in her Reasons that [W] would not be spending time with his father. (Mother’s Summary of Argument filed 22 April 2021, p.5) The father’s submission that this analysis of the reasons for judgment cannot be sustained is entirely correct. The primary judge did not mistakenly make orders about these two children. Rather, at [97], the primary judge determined that an order sought by the mother that these two children not have to see the father against their wishes would not be made. In other words, the primary judge said the opposite to that for which the mother contends.

Ratio Decidendi

Legal Principle Established

The mother presented three grounds of appeal, which assert that the primary judge erred by:·misdirecting herself in determining the proceedings by reference to the conduct of the mother in “uprooting” the children from City B rather than by reference to the children’s best interests (Ground 1);·having regard to the evidence before the Court, it was not reasonably open to find that the children’s best interests required their return to City B (Ground 2); and·in failing to give proper, genuine and realistic consideration to the merits of a proposal made by the father, namely that the children live with the mother in Town D and that they spend each alternate weekend with him (Ground 3).Were the best interests of the children subverted to other considerations? By Ground 1 it is contended that the primary judge was “distracted” by the mother’s conduct in uprooting [84] and “unilaterally” moving the children from their home near City B to Town D [22], [88]. The assertion being, that the primary judge was unduly influenced by the unilateral nature of the children’s relocation as a consequence of which, the judge failed to consider the key issues in the case. In particular that the case was to be determined by reference to the principles contained in Part VII of the Act and with the best interests of the children and not the mother’s conduct being the paramount consideration (s 60CA of the Act). No challenge is made to the primary judge’s statement of the applicable principles for cases such as this, but it is said that the law was misapplied. As paragraph six of the mother’s Summary of Argument filed on 22 April 2021 correctly identified, the mother advanced her case before the primary judge on five limbs. Namely her evidence as to the father’s excessive consumption of alcohol, that he was often angry with her and children, the mother and children’s fear of the father, the father’s ownership of rifles and guns which he had used whilst angry and intoxicated, and the mother thus considering that it was in the children’s best interests that they move to Town D where she had support from her brother. On a fair reading of the reasons for judgment, it is apparent that each of these matters was considered. None of these points was overlooked. Regard need only be had to [30], [31], [37]–[41], [47], [63], [71], [72], [76] and [84] to establish the point. Notably, no challenge is made to findings to the effect that the mother did not establish she is at risk of harm from the father if she lives in the same vicinity as him [47] or that the children are at risk of harm from the father [48]. Or against similar findings made at [86]. Otherwise, the submission advanced for the mother that the primary judge determined the proceedings having regard to the children’s long-term interests, cannot be sustained. Although the children’s long-term interests were mentioned at [88], the submission misses the point being made. Properly understood, at [88], the primary judge sought to establish whether at this stage she could be satisfied that the children’s long-term interests would be served by staying put. Had her Honour been satisfied that the children’s long term interests lay in Town D, it is clear that this would have influenced the evaluation of their short term interests and weighed in favour of the mother’s primary proposal. However, as the question of the children’s long-term interests could only be answered after a final hearing, their long term interests could not and did not influence the decision.