FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Angeli & Farina [2022] FedCFamC1A 40
Appeal from: Angeli & Farina [2021] FedCFamC1F 266 Appeal number(s): NAA 84 of 2021 File number(s): SYC 5377 of 2019 Judgment of: ALDRIDGE, TREE & STRUM JJ Date of judgment: 24 March 2022 Catchwords: FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – Appeal from final parenting orders permitting the child to relocate with the respondent to the USA – Whether the primary judge gave adequate reasons – Whether the primary judge failed to take into account relevant considerations – Whether the primary judge failed to attribute appropriate weight to the evidence – Where no ground of appeal is established – Appeal dismissed – Costs ordered in favour of the respondent and the Independent Children’s Lawyer. Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
House v The King (1936) 55 CLR 499; [1936] HCA 40
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 46 Date of hearing: 28 February 2022 & 7 March 2022 Place: Sydney (via video link), delivered in Cairns Counsel for the Appellant: Ms Tabbernor on 28 February 2022 and Ms Vohra SC on 7 March 2022 Solicitor for the Appellant: Broun Abrahams Burreket Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Lander & Rogers Counsel for the Independent Children’s Lawyer: Ms Lioumis Solicitor for the Independent Children’s Lawyer: Legal Aid NSW ORDERS
NAA 84 of 2021
SYC 5377 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ANGELI
Appellant
AND: MS FARINA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, TREE & STRUM JJ
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1.Appeal No. NAA 84 of 2021 be dismissed.
2.Within 28 days, the appellant pay the respondent’s costs in the sum of $40,000.
3.Within 28 days, the appellant pay the Independent Children’s Lawyer’s costs in the sum of $10,962.
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 Angeli & Farina has been approved pursuant to s 121(9)(g) of the Family Law Act
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- AGLC
- Angeli & Farina [2022] FedCFamC1A 40
- Case
- [2022] FedCFamC1A 40
- Decision Date
CaseChat Overview and Summary
The appeal, brought by the father against the final parenting orders, concerns the relocation of the child to the United States with the mother. The Federal Circuit and Family Court of Australia was tasked with determining whether the primary judge's decision was erroneous, particularly in relation to the reasons given, the consideration of relevant factors, and the weight attributed to the evidence. The mother and the Independent Children's Lawyer opposed the appeal, and the appeal was subsequently dismissed. The court found that the father failed to establish any grounds for appeal that warranted a reversal of the primary judge's decision. The father's appeal hinged on the contention that the primary judge did not adequately address the reasons for the relocation, failed to consider pertinent factors, and misattributed the weight of the evidence. However, the court found that the primary judge had provided sufficient reasoning and had correctly assessed the evidence and factors pertinent to the case.
The court examined the evidence and reasoning provided by the primary judge, finding that the mother's support for the father's relationship with the child was not in question and that the mother's ability to meet the child's emotional needs would likely improve with the relocation. The court also found that both parents could be relied upon to follow court orders and had shown a commitment to the child's welfare. The father's argument that the mother would cease to support his relationship with the child if they relocated to the United States was dismissed as mere speculation. The court concluded that the primary judge had correctly considered the evidence and factors and had not erred in his decision. As a result, the appeal was dismissed, and the father was ordered to pay costs to the mother and the Independent Children's Lawyer. The child remains in Sydney pending the finalisation of the appeal process.
The court examined the evidence and reasoning provided by the primary judge, finding that the mother's support for the father's relationship with the child was not in question and that the mother's ability to meet the child's emotional needs would likely improve with the relocation. The court also found that both parents could be relied upon to follow court orders and had shown a commitment to the child's welfare. The father's argument that the mother would cease to support his relationship with the child if they relocated to the United States was dismissed as mere speculation. The court concluded that the primary judge had correctly considered the evidence and factors and had not erred in his decision. As a result, the appeal was dismissed, and the father was ordered to pay costs to the mother and the Independent Children's Lawyer. The child remains in Sydney pending the finalisation of the appeal process.
Orders
Orders of the court
NAA 84 of 2021
SYC 5377 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR ANGELI
Appellant
AND:
MS FARINA
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, TREE & STRUM JJ
DATE OF ORDER:
24 MARCH 2022
THE COURT ORDERS THAT:
1. Appeal No. NAA 84 of 2021 be dismissed.
2. Within 28 days, the appellant pay the respondent’s costs in the sum of $40,000.
3. Within 28 days, the appellant pay the Independent Children’s Lawyer’s costs in the sum of $10,962.
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
The father appeals from those orders. The mother and the Independent Children’s Lawyer (“the ICL”) both oppose the appeal. For the reasons that follow, the appeal will be dismissed.BACKGROUND From late 2010 until early 2019, the parties lived in City A, in the USA. In January 2019, the father relocated to Sydney to take up an employment opportunity. On 2 July 2019, the mother and the child moved to Sydney to join the father. The relationship broke down almost immediately and the father commenced these proceedings on 15 August 2019. Since separation, the child has been in the primary care of the mother in Sydney and has spent time with the father there. The final hearing occurred over 11 days in two tranches between 7 May and 23 September 2021. At that hearing, the mother sought to relocate the child’s residence to City A, whereas the father sought that the child remain in Australia, although both had similar proposals for the child to spend time with the other parent during school holidays. Neither parent was prepared to relocate to the other’s preferred location (at [21]), and thus the trial centred on with which parent, and in which country, the child should primarily live. The parties were able to agree to share parental responsibility and for orders providing a communication regime with the other parent depending upon which parent the child lived with. The balance of the issues were determined by the primary judge in his Honour’s orders and reasons for judgment delivered on 9 December 2021. On 15 December 2021, a stay of the orders permitting the child’s relocation was granted pending determination of the appeal, and the child presently remains living in Sydney.THE APPEAL At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court 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.
Evidence
Evidence Before The Court
Again this ground revisits much of what we have already discussed in Ground 1, and where we explained why the critical evidence of family violence was the father’s own admissions. Turning to the specific complaint that there was an inadequate exposure of reasons for concluding that the mother would support the father’s relationship with the child if living with her in the USA, the following are relevant:68.This consideration is not determinative and is, in any event, subsumed under issues of parental attitudes. The Court observes that if there were missed opportunities, or exclusions from joint decision-making, in the overall context of this case they make little difference to the outcome. The father’s contention that the mother played the role of gatekeeper in relation to [the child’s] time with his father is, firstly, hardly surprising given their relationship and the circumstances of their separation and, secondly, did not extend for any significant period of time given how quickly the proceedings were commenced and came before the Court.…77.At one point in his evidence Dr D spoke of the risk that the mother, who had hitherto been consistently supporting the relationship between father and son, would cease to do so on return to City A. Ultimately he agreed that this was mere speculation and that it was equally likely that on return to City A the mother would support the relationship even more. In any event the Court cannot discern from the evidence any suggestion that a return to City A somehow increases the risk of diminished maternal support for the paternal relationship.…91.This was an issue in this case. Concerns arising from the mother’s mental health have already been addressed in the context of risk of harm above. The nature of [the child’s] relationship with both parents has been explored. The Court accepts that there is an issue about the mother’s ability to meet [the child’s] emotional needs. The Court is satisfied from the evidence, however, that the mother’s capacity in this regard is likely to improve if she can return to City A with him. It must be remembered that the mother is no stranger to sole-parenting [the child] even during times when she suffered from mental health issues that were known to the father before they relocated to Australia. She cared for [the child] alone when the father was in Australia and she was in City A. She did so during his frequent work-related travels before separation. Implicit in the father’s proposals for time with the mother is an acceptance that she has the requisite capacity to meet his needs, even during extended periods overseas.…103.Both parents can be relied upon to follow Court orders. Indeed, the mother has gone beyond the orders to provide further contact and communication with the father. This reflects positively on both their attitudes towards [the child], and to their responsibilities as parents.…105.It was a part of the father’s case that the mother would not do so if she were allowed to return to City A. He submitted that, for example, a close examination of the mother’s conduct, both in terms of actions and omissions, would raise concerns about the priority that she places on the father’s relationship with [the child]. The Court accepts that there are multiple examples from the evidence of the mother expressing her antipathy towards the father, but this conduct cannot be examined or understood otherwise than in the context of her experience of the family violence perpetrated by the father. The Court has found that the mother was the victim of family violence perpetrated by the father, in the form of abusive and controlling behaviour. The focus needs to be on the mother’s actions, rather than the attitudes that she held about the father. In this regard, an objective review of the evidence demonstrates that at all relevant times the mother did support the relationship between [the child] and his father. She complied with all orders in relation to time and communication, and then during the 2021 COVID-19 lockdown she agreed to extend this time, notwithstanding her antipathy towards the father. It must be remembered that there is no evidence in this case to suggest that any antipathy the mother felt towards the father was manifested in the presence of [the child], or that he somehow assimilated his mother’s feelings, or that he said or did anything to suggest that this was the case. Indeed, in evidence were the notes prepared by Dr C during the mother’s consultations with her. These notes clearly indicate that the mother was able to hold together two seemingly inconsistent notions: on the one hand, her anger towards the father, and on the other, a clear recognition of the importance to [the child] of the relationship with his father. That the mother was able to achieve this reflects very positively on her insight into the difference between her need to be totally independent from the father, and [the child’s] needs to have the father meaningfully involved in his life.106.In Dr D’ first report he had few reservations about the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between [the child] and his father. In his second report, he sounds a cautionary note on page 16. Dr D was clearly concerned about the possibility that the mother’s expectations of her relationship with Ms H might not be realised. If this were the case, he thought it would have an unpredictable effect on her mental state, sense of autonomy, parenting capacity, and ultimately on her attitude towards [the child’s] relationship with his father. The Court of course has had the benefit of hearing evidence from both the mother and Ms H about their relationship, and their life plans. The Court is satisfied that they have both carefully considered the future of their relationship, as well as the consequential effect of this on both of their respective children, [the child] and Y. Their collective child-focus was palpable, as was their love and affection for each other. The Court therefore does not accept that the concern identified by Dr D creates any basis for lesser confidence in the mother’s ability to facilitate and encourage a close and continuing relationship between [the child] and his father.(Emphasis added)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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