Baynor & Emmitt

Case [2024] FedCFamC1A 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Baynor & Emmitt [2024] FedCFamC1A 164

Appeal from: Baynor & Emmitt [2024] FedCFamC2F 531
Appeal number: NAA 120 of 2024
File number: SYC 8506 of 2017
Judgment of: CAMPTON J
Date of judgment: 20 September 2024
Catchwords: FAMILY LAW – APPEAL – Where the father requires leave to appeal from an order dismissing his application to vary final parenting orders pursuant to the principles in Rice v Asplund (1979) FLC 90-725 – Where the father’s complaints as to procedural error are not made out – Where the complaints were, in reality, as to errors of fact and weight – Error of fact established – Where that error is not material to the determination – Where contended errors as to weight are not made out – Where the father’s dissatisfactions as to the role and conduct of the Independent Children’s Lawyer do not identify appellate error – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) ss 65DAAA, 69ZW, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited:

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

De Winter v De Winter (1979) 29 ALR 211

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

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

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Lasso & Malaka (2022) 65 Fam LR 423; [2022] FedCFamC1A 130

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

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

Nootkamp & Brulja [2023] FedCFamC1A 90

Pachris & Tajir (No 3) [2023] FedCFamC1A 230

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Wynn & Danilov [2023] FedCFamC1A 149
Number of paragraphs: 55
Date of hearing: 18 September 2024
Place: Sydney
The Appellant: Litigant in person
Counsel for the First Respondent: Mr Thomas
Solicitor for the First Respondent: Richard Cummins Solicitor
Solicitor for the Second Respondent: Kent Attorneys
Counsel for the Independent Children's Lawyer: Ms Tabbernor
Solicitor for the Independent Children's Lawyer: Dorter Family Lawyers & Mediators

ORDERS

NAA 120 of 2024
SYC 8506 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR BAYNOR

Appellant
AND:

MS EMMITT

First Respondent

MS VIETH

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

20 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 21 May 2024, as amended on 31 July 2024, is dismissed.

2.The appellant pay the…

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AGLC
Baynor & Emmitt [2024] FedCFamC1A 164
Case
[2024] FedCFamC1A 164
Decision Date

CaseChat Overview and Summary

In the matter of Baynor & Emmitt, the appellant, Mr. Baynor, sought leave to appeal against the dismissal of his application to vary final parenting orders. These orders, entered by consent on 31 July 2019, specified equal shared parental responsibility for the child, with the child residing primarily with the mother and maternal grandmother, and set out visitation arrangements with the father. The father's application, filed on 22 November 2023, sought to alter these arrangements significantly, including requesting sole custody and restricting contact with the mother until she provided a psychological assessment. The primary judge dismissed the application, and Mr. Baynor appealed.

The central legal issues in this case involved whether the father was entitled to leave to appeal the dismissal of his application to vary the parenting orders and whether any errors in the primary judge's decision warranted overturning the dismissal. Specifically, the court had to determine if the primary judge's decision was attended by sufficient doubt or if there was any substantial injustice that would justify appellate interference.

The court held that leave to appeal was necessary for orders dismissing applications to vary parenting orders, as such orders do not constitute child welfare matters under the Family Law Act. Despite the father's arguments regarding procedural errors, the court found that these complaints were essentially challenges to the weight given to evidence and factual findings, which are not grounds for appellate intervention. The court found no material error in the primary judge's factual findings and concluded that any perceived errors in the exercise of discretion did not justify setting aside the primary judge's decision. The court further dismissed the father's concerns about the role and conduct of the Independent Children's Lawyer as not amounting to appellate error.

Accordingly, the court dismissed the appeal and ordered the appellant to pay the costs of the respondents and the Independent Children's Lawyer in a fixed sum. The detailed reasoning underscores the high threshold for appellate intervention in discretionary decisions and reinforces the principle that appellate courts generally do not substitute their judgment for that of the primary judge.

Orders

Orders of the court

NAA 120 of 2024

SYC 8506 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR BAYNOR

Appellant

AND:

MS EMMITT

First Respondent

MS VIETH

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

20 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Notice of Appeal filed on 21 May 2024, as amended on 31 July 2024, is dismissed.

2. The appellant pay the second respondent’s costs fixed at $8,597 within 28 days.

3. The appellant pay the Independent Children Lawyer’s costs fixed at $4,901 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow the Notice of Appeal as amended on 31 July 2024 will be dismissed.BACKGROUND On 31 July 2019 the parties entered consent orders during a defended final hearing, providing:1. That the [father] and [mother] have equal shared parental responsibility for the child of the relationship [X] born […] 2014 (hereinafter referred to as "[the child X]").2. That [the child X] live with the mother and the maternal grandmother (intervenor) in the maternal grandmother's home.a. That [the child X] spend time with the father as follows:-b. each Friday from after pre-school/school or 3 pm if a non school day until 5 pm Saturday.c. at such other times as agreed between the parties. 3. That changeover shall occur as agreed between the parties but failing agreement the father collect [the child X] from pre-school/school and the mother collect [the child X] from the father's residence.4. That the mother shall comply with all recommendations given by her mental health care practitioners including but not limited to taking her medication as prescribed and attending all appointments as scheduled by her mental health care professionals.5. That the mother shall reside with the maternal grandmother at all times that [the child X] is in her care.6. That the maternal grandmother shall inform the father in the event that the mother is hospitalised as a result of her mental health as soon as practicable and within 24 hours of such hospitalisation.AND THE COURT FURTHER ORDERS THAT:7. All extant applications otherwise be dismissed.AND THE COURT NOTES THAT: A. It is Noted that should the Mother be unavailable due to hospitalisation to care for [the child X];i. the father is to be notified immediately by email/SMS;ii. the maternal grandmother will facilitate extra time for the child to spend with the father (including overnight time) and notify the father of any existing arrangements that the child is required to attend to;iii. the father undertakes to ensure the child’s routine is maintained. (As per the original) The father’s Amended Initiating Application filed on 22 November 2023, dismissed by the primary judge, sought:2. That the orders made on 31 July 2019 be discharged.3.That the Applicant Father and [the mother] have equal shared parental responsibility for the child.4. That the child shall live with the father at the father’s residence.5.That the child shall spend no time with the [mother] and [the maternal grandmother] until such time the mother provides to the Applicant Father a psychological assessment or psychological report, confirming her parenting capacity of the chid and is able to act in the best interest of the child.6.That the child discontinues counselling with [the child’s counsellor] and attends a psychologist to obtain treatment and advice on his development, well-being, and mental health concerns.7.That time with the mother shall be re-visited in the event Order 4 has been complied with. Directions were made on 23 November 2023 listing for hearing, by way of preliminary enquiry, as to whether circumstances had materially changed since the orders were made on 31 July 2019 to warrant another trial to consider a revision of those orders applying the principles identified in Rice v Asplund (1979) FLC 90-725 (“Rice v Asplund”)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Leave to appeal is not required for orders in child welfare matters. Parenting orders are child welfare matters within the meaning of s 28(1) of FCFCOA Act and reg 4.02 of the Regulations. Regulation 4.02(2) provides:4.02 Leave to appeal required for some family law and child support proceedings–prescribed judgments…(2) For paragraph (1)(a), a child welfare matter is a matter relating to the following:(a) the person or persons with whom a child is to live;(b)the person or persons with whom a child is to spend time or communicate;(c)any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child. As identified during the hearing of the appeal, the order under challenge, being an order dismissing an application, does not fall within the regulatory definition of a “child welfare matter” and is not a parenting order (Nootkamp & Brulja [2023] FedCFamC1A 90). That order did not finally dispose of rights to vary the 2019 parenting orders. Regard must be had to the legal rather than the practical effect of the order (Lasso & Malaka (2022) 65 Fam LR 423 at [17] citing Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248; Wynn & Danilov [2023] FedCFamC1A 149). Hence, leave to appeal from the order under challenge is required. The father did not seek leave to appeal in his Amended Notice of Appeal. His Summary of Argument did not address the issue. During the hearing of the appeal the father was consensually granted leave to make an oral application for leave to appeal from Order 1 made 24 April 2024. Whilst the discretion to grant leave is unfettered, generally the Court will look to see whether the decision is attended with sufficient doubt so as to justify leave, and whether a miscarriage of justice would occur if leave were not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]). The question of the key interests of justice in this appeal relies upon the issue of whether the decision is attended by sufficient doubt. That in turn relies on the identification of error by way consideration of the grounds of appeal relied upon by the father. As explained below, on consideration of the grounds of appeal, the father has not demonstrated doubt as to the correctness of the order dismissing his Amended Initiating Application filed 22 November 2023, nor could he point to any substantial injustice by way of the said order. Leave to appeal will be refused.AN APPEAL FROM A DISCRETIONARY DETERMINATION A presumption exists at law that a primary judge’s decision is correct, and the onus rests on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621). The limits upon appellate interference with a discretionary order are well settled (House v The King (1936) 55 CLR 499 at 504–505) (“House”)). The weight given to evidence in the exercise of discretion is a matter quintessentially for the primary judge. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

Ratio Decidendi

Legal Principle Established

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