Andalis & Andalis
[2021] FamCAFC 77
•19 May 2021
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 2020APPEAL 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:
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 the children’s place of residence in the City B area (Order 2). If the mother returned along with the children, the children would live primarily with her, and on alternate weeks spend time with their father from 3.00 pm or at the conclusion of school on Thursday, until the start of school on Monday during school term, and half school holidays (Order 3). If the mother elected not to return with the children, the children would live with the father and spend one weekend a month during the term with her in Sydney and half of the school holidays (Order 4). Although the mother formally challenged every order, including those made in accordance with her application, senior counsel who appeared for the mother on the appeal confirmed that the primary focus of the appeal was the order which required that the children be relocated back to the City B area.
By way of background, the parties separated in late August 2020 when the mother left the parties’ home which is on a property just outside City B. The mother took the parties’ four children with her. W, their only son, is the eldest and was born in 2007. W’s sisters are, X, born in 2008, Y, born in 2010 and Z, born in 2016. After a short period in City B, the mother and children moved to Town D, where the mother’s brother lives. Both parties are public servants in paid employment. The mother gave evidence that the father abused alcohol and when intoxicated he was abusive to her and the children. She was particularly concerned about the father’s access to firearms and said she and the children are frightened of him.
Mr Andalis (“the father”) is the children’s father and the respondent to the appeal. He denies the mother’s allegations that he is abusive or a threat to the mother or the children or that the children are afraid of him. He deposed to owning firearms for many years and that he had never come to attention for their being misused or mishandled. He accepted that the parties’ son has not wanted to see him but pointed to the happy times he has spent with the parties’ daughters in the recent school holidays and that some of them had wanted to continue staying with him. The father was willing to vacate the family home in favour of the mother and children having exclusive occupation. The father resists the appeal and seeks to uphold the orders.
In accordance with s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) the Chief Justice directed that the appeal be determined by a single judge.
The appeal will be dismissed. As the appeal does not raise any question of general principle it is appropriate that the Court’s reasons be given in short form (s 94AAA(7)).
THE GROUNDS OF APPEAL
It needs to be understood that this is an appeal against the exercise of discretion to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
It is important to remember that the reasons for judgment were given ex tempore a few days following the hearing. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely it was overlooked (Akston & Boyle (2010) FLC 93-456 at [28]). Such an approach is appropriate in this appeal and is an impediment to the mother being able to establish Grounds 2 and 3 in particular.
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.
Counsel for the father described the written submissions for the mother as relying on “curated portions” of the reasons for judgment and emphasised the importance of the reasons being considered in their entirety. This submission should be accepted. The reasons for judgment are replete with references to the best interests of the children. On a fair reading of the reasons in their entirety, it is abundantly clear that the primary judge did not subvert the enquiry into an examination of the mother’s conduct in removing the children, and the focus remained on the determination of what orders would be in the best interests of the children. That determination included consideration of the effect on the children’s ability to maintain relationships with both of their parents and to address the identified, significant risk to the children’s relationship with the father if they continued to live so far apart.
Ground 1 has not been established.
The father’s tertiary proposal
Ground 3 was argued next and the same approach will be adopted. As the primary judge accurately recorded, the parties presented a range of proposals concerning the children’s living arrangements. For the mother, that the children continue to live with her in Town D and, for the father, that the children be returned to live in City B [8]. In the event that the mother did not return with the children, the father proposed that a recovery order be issued and the children live with him [5]. In a cascading list of alternatives, and in the event that the primary judge declined to make an order requiring that the children return to the City B area, the father proposed that the children spend time with him during the school term each alternate weekend from Friday to Sunday and half of the school holidays [9]. It is this proposal that is the focus of Ground 3 and which the mother says received insufficient attention in the reasons for judgment.
The mother did not agree with any of the father’s proposals. In the event that the children were able to continue to live with her “on the [Region C]” the mother proposed that during the school term, the children spend time with the father “on weekends when [there is] a public holiday or once per month in Sydney…” (Mother’s Minute of Order dated 22 January 2021, p.2). At [10] of the trial reasons, the primary judge summarised the mother’s alternate proposal to be considered, which was presented on the basis that “if the Court does not agree to an order that the mother be permitted to live with the children in the [Town D] area then in the alternative” (Mother’s Minute of Order dated 22 January 2021, p.2). In this circumstance, the children would spend time with the father during school term “each alternate weekend from after school Friday to before school on Monday”. So that it is clear, this proposal was not put forward for consideration if the children were able to remain living in Town D, some eight hours’ drive from City B.
As the Minute of Order presented by the mother to the primary judge and the hearing transcript make patently clear, the mother at no stage agreed that the father’s further alternate proposal for the children to spend time with him each alternate weekend, if the Court did not order the children’s return to the City B region, was logistically feasible or would be in the best interests of the children. In this respect, the mother is bound by the conduct of her case before the primary judge and she cannot adopt a position in the hearing that the primary judge should reject this proposal, indeed all the father’s proposals, as contrary to the best interests of the children and then complain on appeal that the primary judge did not “give proper, genuine and realistic consideration” to a proposal which the mother herself rejected.
Furthermore, the submission for the mother that “it is implicit in that [alternate proposal] that the father believed that he could maintain a meaningful relationship with the children if they were to remain living in [Town D]” (Mother’s Summary of Argument filed 22 April 2021, p.7) cannot be sustained. As counsel for the father said, “[m]aking a tertiary proposal in the event that the Court did not see that it was in the children’s best interests to live in [City B] in the interim does not amount to a concession that the tertiary proposal is one which necessarily promotes of [sic] a meaningful relationship” (Father’s Summary of Argument filed 5 May 2021, p.11). It was no more than his worst case scenario and the best he thought he could achieve if he failed in every other respect.
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.
The focus of the remainder of the submission made in support of this challenge, was on the evidence that in the few months the children had been in Town D they had settled, were attending school and had begun to make friends. And that the parties’ son, in particular, was happier and more socially integrated than he had been when he lived at City B. At the appeal, counsel for the mother emphasised remarks made by some of the children in January 2021 to a Family Consultant as to them being settled in Town D and their views about spending time with the father. The point being, these factors weighed against the conclusion that the children’s return to the City B area was in their best interests. Given that the mother does not (correctly no doubt) challenge her Honour’s assessment of risk posed by the father to the mother and the children, the gravamen of the submission must be that these matters compelled the finding that a return was not in their best interests. But even the Family Consultant did not go that far.
At [47] of the Child Inclusive Conference Memorandum filed on 20 January 2021, the Family Consultant said:
If the children were to remain in [Town D] and spend time with [the father] in the school holidays, the children might benefit from the lifestyle that [W] and [Y] spoke happily about and the family in general may benefit from having support from the extended maternal family who live in the area. However, the children’s relationship with their father may be compromised by only seeing him in the school holidays and infrequent time may make it more difficult for [W] and [the father’s] relationship to repair.
The primary judge did not overlook the children’s views as expressed to the Family Consultant or the mother’s evidence that the children were settled and happy, but, in a comparative exercise, placed greatest weight on the risk to the children’s relationship with the father if they continued to live so far apart and face-to-face contact was necessarily limited. Other matters were weighed in favour of the children’s return about which no complaint is or could be made.
In short, the primary judge considered the matters on which the mother relies but obviously decided that the benefits for the children returning to the City B region where they had lived for a long time warranted greatest weight. No basis was proffered as how this Court could permissibly interfere with her Honour’s attribution of weight.
It follows that the argument that the ultimate conclusion as to the children’s best interests was not reasonably open should be rejected.
CONCLUSION AND COSTS
The mother has failed to establish any grounds of appeal and the appeal will be dismissed. In these circumstances, the father sought that she pay his costs in the amount of $5,897.22.
Given the mother’s total lack of success, the father has incurred legal expenses unnecessarily. The mother realises that she could not sensibly resist the order sought and it is appropriate that it be made. For his part, the father agrees that payment of his costs should be deferred until the mother receives her share of the property settlement.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ryan. Associate:
Dated: 19 May 2021
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