Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Todora & Todora [2022] FedCFamC1A 151
Appeal from: Todora & Todora [2022] FedCFamC1F 421 Appeal number(s): NAA 147 of 2022 File number(s): BRC 1283 of 2020 Judgment of: ALDRIDGE, TREE & ALTOBELLI JJ Date of judgment: 27 September 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from orders providing for respondent to have sole parental responsibility and allowing the respondent to return to Country B with the child – Where the mother and child were habitually living in Country B and visited Australia so that the child could spend time with the appellant – Where the appellant commenced proceedings before the appellant returned to Country B – Where the child was administratively placed on the Family Law Watchlist – Error of law – Adequacy of reasons – Where no error is established – Orders made for the child to be removed from the Family Law Watchlist – Appeal dismissed – The appellant is to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. Legislation: Australian Constitution
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
M v M (1988) 166 CLR 69; [1988] HCA 68
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 96 Date of hearing: 31 August 2022 Place: Brisbane The Appellant: Self-represented litigant Counsel for the Respondent: Ms Carmody Solicitor for the Respondent: Legal Aid Queensland Counsel for the Independent Children's Lawyer: Mr George Solicitor for the Independent Children's Lawyer: Jenny Boulton Solicitor ORDERS
NAA 147 of 2022
BRC 1283 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR TODORA
Appellant
AND: MS TODORA
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE, TREE & ALTOBELLI JJ
DATE OF ORDER:
27 september 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 18 August 2022 is dismissed.
2.The appeal is dismissed.
3.Order 1 made on 22 July 2022 is discharged and the Court requests that the Australian Federal Police remove the name of the child X born … 2016 from the Family Law Watchlist at all points of international arrivals and departures in Australia.
4.The appellant will pay the costs of the respondent fixed in the sum of…
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Details
- AGLC
- Bahonko v Sterjov [2008] FCAFC 30
- Case
- [2008] FCAFC 30
- Decision Date
CaseChat Overview and Summary
The appeal in Bahonko v Sterjov was brought by the father against orders made in the Family Court which provided for the respondent mother to have sole parental responsibility for their child and allowed the respondent to return to Country B with the child. The child was administratively placed on the Family Law Watchlist at the time of the appeal. The primary judge had found that the father had sexually assaulted the mother and had harassed her with unwanted communications. The mother had returned to Country B with the child in July 2018 and had brought the child back to Australia in October 2019. The father commenced proceedings in February 2020, leading to the contested final hearing which took place in July 2022.
The father appealed on the basis that the primary judge erred in finding that sole parental responsibility for the child should be awarded to the mother and in allowing the mother and child to return to Country B. The father contended that the mother’s parenting was compromised and that she had an unreasonable antipathy to the father. The Court found that there was no error in the primary judge’s findings or in the orders made. The Court held that the mother’s primary proposal for the child to spend time with the father whilst residing in Country B was the most advantageous option for the child. The Court also found that the mother’s attitude to the father had not changed and that there was no basis for the father’s contentions. The appeal was dismissed and the appellant was ordered to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. The Court also ordered that the child be removed from the Family Law Watchlist.
The Court’s decision was based on a careful consideration of the evidence and the findings of the primary judge. The Court found that the primary judge had correctly exercised his discretion and that there was no error in the orders made. The Court also found that the father’s appeal was without merit and that there was no basis for the father’s contentions. The Court’s decision was in the best interests of the child and the Court found that the mother’s primary proposal was the most advantageous option for the child. The Court’s decision was also in accordance with established principles of family law and the Court’s decision was consistent with previous decisions of the Court.
The Court’s decision in this case highlights the importance of considering the best interests of the child in family law proceedings. The Court found that the mother’s primary proposal was in the best interests of the child and that the child’s relationship with the father would be fostered, encouraged and facilitated by the mother. The Court also found that the mother’s attitude to the father had not changed and that there was no basis for the father’s contentions. The Court’s decision also highlights the importance of considering the findings of the primary judge and the evidence before the Court in determining whether there has been an error in the exercise of discretion.
The father appealed on the basis that the primary judge erred in finding that sole parental responsibility for the child should be awarded to the mother and in allowing the mother and child to return to Country B. The father contended that the mother’s parenting was compromised and that she had an unreasonable antipathy to the father. The Court found that there was no error in the primary judge’s findings or in the orders made. The Court held that the mother’s primary proposal for the child to spend time with the father whilst residing in Country B was the most advantageous option for the child. The Court also found that the mother’s attitude to the father had not changed and that there was no basis for the father’s contentions. The appeal was dismissed and the appellant was ordered to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum. The Court also ordered that the child be removed from the Family Law Watchlist.
The Court’s decision was based on a careful consideration of the evidence and the findings of the primary judge. The Court found that the primary judge had correctly exercised his discretion and that there was no error in the orders made. The Court also found that the father’s appeal was without merit and that there was no basis for the father’s contentions. The Court’s decision was in the best interests of the child and the Court found that the mother’s primary proposal was the most advantageous option for the child. The Court’s decision was also in accordance with established principles of family law and the Court’s decision was consistent with previous decisions of the Court.
The Court’s decision in this case highlights the importance of considering the best interests of the child in family law proceedings. The Court found that the mother’s primary proposal was in the best interests of the child and that the child’s relationship with the father would be fostered, encouraged and facilitated by the mother. The Court also found that the mother’s attitude to the father had not changed and that there was no basis for the father’s contentions. The Court’s decision also highlights the importance of considering the findings of the primary judge and the evidence before the Court in determining whether there has been an error in the exercise of discretion.
Orders
Orders of the court
1. The Application in an Appeal filed on 18 August 2022 is dismissed.
2. The appeal is dismissed.
3. Order 1 made on 22 July 2022 is discharged and the Court requests that the Australian Federal Police remove the name of the child X born … 2016 from the Family Law Watchlist at all points of international arrivals and departures in Australia.
4. The appellant will pay the costs of the respondent fixed in the sum of $4,111 and the costs of the Independent Children’s Lawyer of $4,111 within 28 days.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Todora & Todora has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
Nonetheless, as the primary judge recognised, the issue before the Court was what orders were in the best interests of the child. It was never suggested that those interests were served by a summary return to Country B which was a course that may have been taken. See for example Killam & Loeng (2015) FLC 93-642. It appears that an expedited final hearing was arranged but did not proceed due to COVID-19 difficulties.Background The parties met online in 2011 or 2013. At that time the parties were living in their countries of origin. For the father, that was Country J and for the mother, Country B. The parties married in late 2015 and lived in City H, Country J. That arrangement was never intended to be permanent as the parties were proposing to move to either Country F or Australia. Australia was chosen but by the time visas were obtained in 2016 the mother was pregnant. In early 2016 the parties travelled to City G, Country B so that the mother could have family support after the birth. The father returned to Country J and travelled to Australia in August 2016. The child was born in 2016 in City G, Country B. The father travelled to City G briefly in December 2016 to meet the child. The mother obtained a visa for permanent residency in Australia in March 2017 but, by that time, she had informed the father that she did not wish to continue in the relationship or move to Australia. The father visited the child in City G for three weeks in May 2017. The parties did not live together whilst he was there. In December 2017, the mother and child travelled to Australia to attempt to restore the marriage and for the child to spend time with the father. The trip did not go well. Contrary to the father’s assurance that there were two bedrooms at his home so that the mother could stay there but separately from the father, it was, in fact, a studio apartment. The mother had nowhere else to stay. It was arranged that she and the child would sleep in the bed and the father on a couch separated by a curtain. The primary judge found that the father sexually assaulted the mother on 22 December 2017. There were other difficulties which we do not need to detail. The mother and child returned to Country B in July 2018. The father travelled to City G briefly in September 2018 and spent time with the child. The father returned to City G with his parents in May 2019 for about 10 days. The primary judge found that during this time and following it, the father harassed the mother with unwanted emails and messages which, in turn, implored her to resume the relationship or insulted her for her shortcomings (at [65]). The mother brought the child to Australia again in October 2019. His Honour found that the agreed purpose was for them to stay a few months so that the child could spend time with the father. The father purchased return airfares for the mother and child, with the return flight being 31 May 2020. The primary judge found that the father assaulted the mother in January 2020. In early February 2020, the mother decided to leave Australia. The father agreed and changed the return date on the tickets to March 2020. After he had done so, the father commenced these proceedings.
Evidence
Evidence Before The Court
This led to the following conclusion:159.Having regard to the matters I have set out above in my view, [the mother’s] primary proposal is the most advantageous for [the child]. Whilst it is not without its disadvantages and there will be challenges for the parties and for [the child], I am entirely satisfied that [the child’s] relationship with [the father] will be fostered, encouraged and facilitated by [the mother] notwithstanding there will be a significant geographical distance between the parties. For the reasons I have expressed above, I consider that the language barrier that might be seen to exist between [the child] and her father will be addressed by [the mother]. At the same time, the stress and anxiety presently experienced by [the mother] which, as I have found above, necessarily affects her capacity to parent [the child] and which may be impacting directly upon [the child], will be alleviated. Her primary relationship with [the mother] will remain intact. That will be a much more advantageous position for [the child] then [sic] remaining in Australia in the primary care of her mother but with her parenting capacity compromised.Application to adduce further evidence The Notice of Appeal contains 34 grounds. On 18 August 2022, the father filed an Application in an Appeal seeking leave to amend the Notice of Appeal by replacing those grounds with seven grounds. The father’s Summary of Argument, which had already been filed, addressed those grounds. There was no opposition to the amendment which was permitted. The above application also sought leave to adduce further evidence. That evidence is in two categories. The first, consists of material that predates the hearing. In the absence of any evidence to the contrary, we assume that this evidence was available to be used at the hearing, but was not. The father was unable to explain why the evidence was not relied on. In such circumstances, it is difficult to receive that evidence on appeal (CDJ v VAJ (1998) 197 CLR 172 at [114]–[116]). The second category consists of material relating to a stay application made in respect of the orders under appeal, including the application, affidavits (including that of the process server) and the transcript of the proceedings. The relevance of that material was said to be that the mother’s attitude to the father had changed so that she no longer supported the child spending time with him. Such evidence could not identify error by the primary judge but could be relevant on any re-exercise of the discretion in the event the appeal was allowed. At the hearing we indicated that we would receive the evidence set out in paragraphs 15(f) to 15(m) on any re-exercise of discretion, but not otherwise. The above are our reasons for doing so. As the appeal will be dismissed, there is no need for the further evidence and the application will be dismissed. The Appeal It is to be recalled that this is an appeal from a discretionary decision so that the well-known statement of principle set out in House v The King (1936) 55 CLR 499 at 504–505 applies:…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… Did the primary judge err by making an order for sole parental responsibility? (Ground 1)
Decision
Reasons for decision
This ground is not made out.Conclusion and costs It follows that the appeal will be dismissed. The appeal was entirely unsuccessful. The father clearly has some means. He will pay the costs of the mother and the ICL, each fixed in the sum of $4,111. At a hearing of an application for a stay, the child was again placed on the Family Law Watchlist. That order will be discharged.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.