Andreou & Manellis - [2022] FedCFamC1A 107

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Andreou & Manellis [2022] FedCFamC1A 107

Appeal from: Manellis & Andreou [2022] FedCFamC2F 32

Appeal number(s): NAA 29 of 2022

File number(s): PAC 2845 of 2021

Judgment of: TREE J

Date of judgment: 14 July 2022

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the primary care of the children from the mother to the father – Whether the primary judge failed to afford procedural fairness by proceeding in the absence of the Independent Children’s Lawyer – Whether the decision was plainly unjust – Weight challenges – Whether the findings of the primary judge were open on the evidence – No ground of appeal established – Appeal dismissed – Costs ordered in favour of the father and Independent Children’s Lawyer.

Legislation: Family Law Act 1975 (Cth) s 60CC

Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

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

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

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

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Number of paragraphs: 45

Date of hearing: 7 July 2022

Place: Cairns

Counsel for the Appellant: Ms Winfield

Solicitor for the Appellant: Sim & Co Legal Services

Counsel for the Respondent: Mr Wong

Solicitor for the Respondent: Matthews Folbigg Lawyers

Solicitor for the Independent Children's Lawyer: Medcalf Grant Lawyers

ORDERS

NAA 29 of 2022
PAC 2845 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS ANDREOU

Appellant

AND:
MR MANELLIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

14 JULY 2022

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.Within 28 days, the appellant is to pay the respondent’s costs in the sum of $9,173.71 and the Independent Children’s Lawyer’s costs in the sum of $2,000.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Andreou & Manellis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

By Notice of Appeal filed 16 February 2022, Ms Andreou (“the mother”) appeals from interim…

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 Andreou & Manellis

Details

AGLC: Andreou & Manellis [2022] FedCFamC1A 107
Case: [2022] FedCFamC1A 107
Decision Date

CaseChat Overview and Summary

In the case of Andreou & Manellis, the appeal concerns the parenting orders made in relation to the three children born to the parents during their marriage, which ended in November 2018. The father initiated these proceedings in 2021, and interim orders were subsequently made on 28 July 2021. These orders were further reviewed and modified by the primary judge on 4 February 2022, which forms the subject of this appeal. The father has lodged an appeal against the discretionary orders made by the primary judge on various grounds.

The central legal issues in this appeal revolve around whether the primary judge made an error in exercising his discretion when making the parenting orders, particularly whether there was a failure to adhere to the principles outlined in House v The King. The father argues that the primary judge failed to ensure procedural fairness for the children and the parties by not allowing sufficient time for the Independent Children’s Lawyer to appear and represent the children's interests. Specifically, the father contends that the primary judge should have adjourned the hearing to allow the Independent Children’s Lawyer to be present, thereby ensuring the children had legal representation.

The court meticulously reviewed the appeal, considering whether the primary judge had erred in exercising his discretion. The court examined the grounds of appeal to determine if there was any failure on the part of the primary judge to adhere to the correct legal principles or to consider relevant factors. The court held that the primary judge did not commit any error that warranted the appellate court to substitute its discretion. The court found that the primary judge had considered all relevant factors and acted within the bounds of the law, and thus the appeal was dismissed. The reasoning and outcome of the appeal rest on the principle that unless there is a clear error in the exercise of discretion, the appellate court should not interfere with the primary judge’s decision.

No further orders were made by the court beyond dismissing the appeal. The primary judge's orders for parenting arrangements remain in effect, and the children will continue to reside with the mother while spending time with the father as per the interim orders.

Orders

Orders of the court

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Background

Background to the litigation

For reasons which follow, the appeal will be dismissed.BACKGROUND The mother is presently 41 years of age and the father 39. Their domestic relationship spanned from their marriage in 2007 until final separation in November 2018, although for a period thereafter they remained living under one roof. During the relationship the three children were born, whose ages are now 10, 7 and 4 (almost 5). The father commenced these proceedings in 2021. In due course, interim parenting orders were made on 28 July 2021, which provided that the children live with the mother but spend time with the father for eight hours each Saturday, and have telephone communication with him each Wednesday. The matter was thereafter listed for further interim hearing on 13 December 2021, which hearing resulted in the orders the subject of this appeal.THE APPEAL GENERALLY The appeal extends to 11 grounds, and challenges all orders made by the primary judge on 4 February 2022 on a variety of bases. Those orders are, however, all discretionary in nature. In House v The King (1936) 55 CLR 499 (“House v The King”) at 504–505, it was said:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.Grounds 5 and 8 These grounds are as follows:5.The trial judge erred and denied procedural fairness to the children and the parties when an order having been made for appointment of an Independent Children’s Lawyer:(a)that Independent Children’s Lawyer did not appear at the hearing on 13 December 2021 and the children were therefore denied the benefit of legal representation;(b)she conducted a hearing and made orders without the assistance of legal representation for the children and without the benefit for the children of their own legal representation. 8.The trial judge denied the children procedural fairness in not adjourning the matter to Allow the children the benefit of being represented by an Independent Children’s Lawyer (judgment 3).(As per the original)

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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NAA 29 of 2022 PAC 2845 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS ANDREOU Appellant
AND:	MR MANELLIS Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:		Manellis & Andreou [2022] FedCFamC2F 32
Appeal number(s):		NAA 29 of 2022
File number(s):	PAC 2845 of 2021
Judgment of:	TREE J
Date of judgment:	14 July 2022
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders changing the primary care of the children from the mother to the father – Whether the primary judge failed to afford procedural fairness by proceeding in the absence of the Independent Children’s Lawyer – Whether the decision was plainly unjust – Weight challenges – Whether the findings of the primary judge were open on the evidence – No ground of appeal established – Appeal dismissed – Costs ordered in favour of the father and Independent Children’s Lawyer.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Cases cited:	CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs:	45
Date of hearing:	7 July 2022
Place:	Cairns
Counsel for the Appellant:	Ms Winfield
Solicitor for the Appellant:	Sim & Co Legal Services
Counsel for the Respondent:	Mr Wong
Solicitor for the Respondent:	Matthews Folbigg Lawyers
Solicitor for the Independent Children's Lawyer:	Medcalf Grant Lawyers

ORDER MADE BY:	TREE J
DATE OF ORDER:	14 JULY 2022