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 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 February 2022. In substance, those orders changed the primary care of the parties’ three children from the mother to Mr Manellis (“the father”) and, after a moratorium of a month, thereafter only permitted the children to spend time with the mother as agreed, or in default of agreement, for seven hours of professionally supervised time on one day per week.
Both the father and the Independent Children’s Lawyer opposed the appeal.
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)
Because they assert a want of procedural fairness, which is a challenge to the integrity of the administration of justice, such grounds should be dealt with before other grounds (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612 and 634). Further, because they relate to the same contention, it is convenient to deal with both grounds together.
On 5 November 2021 the primary judge made an order appointing an Independent Children’s Lawyer. The Independent Children’s Lawyer did not appear at the 13 December 2021 hearing, for reasons which the material does not disclose, save that it appears that a lawyer might not have been appointed by the New South Wales Legal Aid Commission by then (Transcript 13 December 2021, p.2 lines 35–38). However on no view did that failure require the primary judge to adjourn the hearing to afford procedural fairness to either party, or the putative Independent Children’s Lawyer. Nothing thereafter precluded the parties from adequately presenting their respective cases.
Moreover, on 13 December 2021, neither party applied to adjourn the hearing. It does not lie in the mouth of the mother to now complain about the hearing proceeding absent an Independent Children’s Lawyer (Metwally v University of Wollongong (1985) 60 ALR 68). The fact that before the primary judge the mother self-represented does not alter that.
These grounds are without merit and fail.
Ground 1
This ground asserts:
1.The trial judge made errors of law and fact in finding that the best interests of the children were served by living with the Father in circumstances where:
(a)the three children had been in the primary care of the Mother since the Father left the home in July 2020; and
(b)there was no finding that the children were exposed to an unacceptable risk in the Mother’s care;
(c)the principal reason for the change of residence was “the benefit the children will obtain from continuing a meaningful relationship with the Father” (Judgment 118); and
(d)the finding is express wish of Y aged 9 < 10 (Judgment 68) and implied wish of X aged 7<8 (Judgment 68 and 69);
(e)she gave undue weight to the benefit of the children having a continuing relationship with their father (Judgment 148) as opposed to loss of their primary carer relationship with the Mother;
(f)the Mother was maintaining time between the children and the Father but supervising it and the Mother’s application before the Court was for the time with the Father to be supervised.
(g)The orders made removed children from their primary carer, the Mother, without sufficient reason having been shown
and as a consequence, the trial judge erred in making Order 4 and Order 7
(As per the original)
Really what this ground asserts is that the result was unreasonable, or plainly unjust, as explained in House v The King, at least in part because the primary judge gave undue weight to the children’s relationship with the father continuing, but insufficient weight to the likely loss of “their primary carer relationship with the mother”.
Both parties asserted that the other posed a risk of harm to the children. The primary judge discussed the material which supported the parties’ respective allegations at [73]–[122], before traversing relevant additional considerations under s 60CC(3) of the Family Law Act 1975 (Cth) at [123]–[131].
At [143]–[148] her Honour then synthesised those several themes into the ultimate conclusions about where the best interests of the children lay, as follows:
143.The Court has serious concerns having regard to the short history of this matter subsequent to the parties’ separation of what exposure the children have had to the parties’ conflict and what they have witnessed. It is clear to this Court, even on an interim basis, that neither of these parties appear to be able to separate their own needs from the needs of the children. Both parties appear to lack insight as to how their behaviour is and will impact upon the children. Neither party appears to be able to shield these children from the parental conflict. The long lasting psychological harm both these parents have potentially inflicted on these children is at this stage unknown. The short term affects appear to already be manifesting with Y.
144.As submitted by the Father, to accept the Mother’s assertions that the children are at an unacceptable risk in the Father’s care I would implicitly have to accept the Mother’s allegations that various members of the New South Wales Police force, from differing police stations, have conspired to protect the Father from the Mother’s allegations including those of family violence. I would further have to accept that Dr J is not acting in the Mother’s best interests. Both these submissions raise concerns as to the Mother’s mental health.
145.There is a risk that the Father has engaged is coercive and controlling behaviour by the placing of tracking devices in the children’s bags. There is also a risk that the Father has occasioned family violence upon the Mother.
146.I am satisfied having regard to the allegations of the Mother that there are some risks to the children in the event that they spend unsupervised time in the care of the Father. Having regard to the strength of the evidence before the Court I am not satisfied that this risk is an unacceptable one. I am satisfied that the best interests of the children do not require their time with the Father to be supervised.
147.The risks to the children in the Father’s care must then be balanced against the risk of harm in the Mother’s care. I am satisfied that the children are at risk of harm in the Mother’s care. This risk of harm is multi-layered. The children are at risk of continuing to witness the parent’s conflict and the Mother’s repeated allegations and subsequent interactions with the Police with respect to the Father. They are at risk of harm that the Mother will continue to involve them in these proceedings. They are at risk of harm that the Mother will not, despite any Orders made by the Court, facilitate a meaningful relationship between the children and the Father as she is convinced that they are at risk of harm in the Father’s care. The Mother’s mental health is a serious issue that will be a matter for determination at the final Trial.
148.I am satisfied that, balancing the competing allegations of risk of harm in each party’s household as against the benefit the children will obtain from a continuing and meaningful relationship with each of the parties that the best interests of the children are met by them living with the Father. Whilst this is a significant change in circumstances for them, especially on an interim basis, I am satisfied that this is the only method whereby the children will be able to continue their relationship with their Father.
Error of a House v The King kind is not made out merely because I might have weighed the relevant considerations differently or arrived at a different conclusion. It was plainly open on the evidence traversed and conclusions arrived at by the primary judge, to change the care of the children to the father.
To the extent that this ground challenges the weight afforded to relevant considerations by the primary judge, it faces a high bar (Gronow v Gronow (1979) 144 CLR 513 at 519) as weight is quintessentially a matter for the primary judge (CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J). That bar has not been cleared here.
Ground 1 fails.
Ground 2
This ground reads:
2.By reason that the trial judge made erroneous findings of primary fact not supported by the evidence and failed to use and palpably misused her position as trial judge as the trial judge erred in her conclusion:
(a)in finding (Judgment 148): “I am satisfied that balancing the competing allegations of risk of harm in each party’s household against the benefit the children will obtain from a continuing and meaningful relationship with each of the parties that the best interests of the children are met by them living with the father”;
(b)by failing to recognise the Mother was maintaining the relationship between the children and the Father, albeit she was supervising it and asking the Court to make supervised time orders;
(c)ignoring the damage to the children’s relationship with the Mother, especially in circumstances of making Orders 9 and 10 for limited and supervised time for the children with the Mother who has been their primary caregiver and such findings are against the weight of the evidence and conflict with the trial judge’s stated legal principle at Judgment para 49 “the Court must place greater weight on the need to protect the children from harm than on the benefit to the children of having a meaningful relationship with both parents”.
(d) There are no findings of the Mother posing any unacceptable risk to the children.
(As per the original)
It appears this ground really complains of four allegedly erroneous factual findings or conclusions by the primary judge.
As to (a) the conclusion is not plainly wrong, nor otherwise erroneous as explained in House v The King. As to (b) there is no reason to think that the primary judge ignored the spasmodic supervised time which the mother had permitted the children to spend with the father (see, for example, [34]–[44]). More, the primary judge was mindful that the mother would not agree that in the future she would necessarily comply with orders requiring the children to spend time with the father (at [117]).
The primary judge did not ignore the likely impact on the children of the orders she pronounced (see [125] and [148]), and thus the challenge advanced by (c) fails. The matter advanced at (d) assumes that only a finding of unacceptable risk could justify a change in primary care. There is no mandate in the Family Law Act 1975 (Cth), or in any authorities considering it, for such a claim, but rather the question remains what is in the children’s best interests.
No matter raised by Ground 2 is established, and it fails.
Ground 3
Ground 3 asserts:
3.The trial judge’s discretion miscarried within the meaning of House v R [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936) and Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 when she failed to consider the implications and risk to the children of having the children collected by the Father from school without explanation to them of the change in circumstances (Order 4) and especially the impact of separation from their primary carer in order to preserve the relationship between the children and the Father. (Judgment 148, 149).
(As per the original)
This ground primarily challenges the primary judge’s orders which on 4 February 2022 effected changeover of the children from the mother to the father at school (Order 4). Given that the time for that changeover is long past, the ground is, to that extent, futile. Otherwise it is a repetition of the challenge made by Ground 1(g) and similarly fails.
Ground 4
This ground provides:
4.By reason that the trial judge made erroneous findings of primary fact not supported by the evidence and failed to use and palpably misused her position as trial judge as the trial judge erred in placing undue reliance on medical records between 27 February 2013 and 8 April 2015 (Judgment 100 to 106) in assessing the Mother’s contact with police 9 February 2021 (Judgment 108) and 29 June 2021 (Judgment 109)with the implication that the Mother has mental health issues. (Heading before Judgment 99, Judgment 113).
(As per the original)
Again, this is a challenge to the weight given by the primary judge to relevant evidence, in relation to which the primary judge formed the conclusion at [113] as follows:
113.The Mother’s medical history is of significant concern to the Court. She has refused to follow through with a referral to a psychiatrist by her treating doctor in September 2015. Her behaviour in constantly contacting the Police and the nature of the allegations raised by the Mother are troubling, as is her reported request to her treating medical practitioner to have her medical history changed.
Contrary to what this ground contends, that conclusion was well open on the evidence, and, having been made, was deserving of weight, albeit again what weight it deserved was quintessentially for the primary judge to assess.
No error is established and Ground 4 fails.
Ground 6
This ground asserts:
6.The trial judge erred having found that there should be a change of residence of the children (Judgment 148).
(a)There was no finding that the Mother poses as a risk to the children, they have been in the sole care of their Mother since July 2020
(As per the original)
This appears to be a repetition of Grounds 1(b) and 2(d). It fails for the same reasons.
Ground 7
This ground reads:
7.The trial judge erred in making assumptions about the presence of the maternal grandmother at the interview with the report writer (Judgment 66) and
(a)drawing adverse inferences without evidence that “the two girls would not be willing to speak freely with respect to anything they wish to say about the Mother’s household with the maternal grandmother present. It may also be the case that the girls would not feel comfortable in expressing any positive aspects about the Father during the course of the interviews.” And
(b)the finding at Judgment 66 is not supported by the finding at Judgment 67: “They did not make any disclosures as to any conduct that have experienced from the Father or in the Father’s household that as negative in any way or caused them distress, despite the maternal grandmother being present during the course of their interviews with the Court Child Expert” which supports the view that the maternal grandmother did not pressure or coach the children.
(As per the original)
The relevant paragraphs of the primary judge’s reasons are as follows:
66.The material contained in the report must be read and considered in light of the fact that the report writer allowed the maternal grandmother to be present whilst Y and X spoke to the report writer. It may be that the two girls would not be willing to speak freely with respect to anything they wish to say about the Mother’s household with the maternal grandmother present. It may also be the case that the girls would not feel comfortable in expressing any positive aspects about the Father during the course of the interviews.
67.In those circumstances I place significant weight on the fact that the girls did not criticise the Father in any way to the report writer. They did not make any disclosures as to any conduct they have experienced from the Father or in the Father’s household that was negative in any way or caused them distress, despite the maternal grandmother being present during the course of their interviews with the Court Child Expert.
The observations made by the primary judge in those paragraphs are entirely unremarkable, albeit I do not construe them as “assumptions.” No error in this regard is established, and Ground 7 fails.
Grounds 9 and 10
These grounds were abandoned.
Ground 11
This ground asserts:
11.The trial Judge did not take into account material consideration in making order 9.
(As per the original)
Order 9 was the order permitting the mother to spend time with the children either as agreed or, absent agreement, for seven hours on one day per week.
Neither the ground nor the mother’s Summary of Argument filed 28 April 2022 advanced any particularity of the consideration said to be ignored.
Subsequent submissions filed 7 July 2022 said that the ignored consideration was the untested nature of the arrangement under the order, i.e. children living with the father and only spending time with the mother. However there is no reason to think the primary judge was not mindful of that, given her observations at [125] and [148].
The balance of the matters raised by the 7 July 2022 submissions relate to the interpretation of Order 9, and hence fall well outside of Ground 11. I will not discuss them further.
This ground fails.
OUTCOME
No ground of appeal succeeds, and hence the appeal will be dismissed.
COSTS
In the event the appeal failed, both the father and the Independent Children’s Lawyer sought an order for their costs.
The appeal was unmeritorious and has wholly failed. There is no reason to think that the mother’s financial circumstances would preclude her meeting costs orders. Whilst the Independent Children’s Lawyer’s Schedule of Costs was filed late, that does not speak against a costs order here. I am satisfied there should be an order for costs.
No objection was taken by the mother to the quantum claimed by either the father or the Independent Children’s Lawyer, and therefore I assess their costs in those sums. Those costs ought be payable within 28 days.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 14 July 2022
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