Bielen & Kozma

Case [2022] FedCFamC1A 221

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Bielen & Kozma [2022] FedCFamC1A 221

Appeal from: Kozma & Bielen [2022] FedCFamC2F 1003
Appeal number: NAA 184 of 2022
File number: BRC 10040 of 2020
Judgment of: MCCLELLAND DCJ, HENDERSON & HARPER JJ
Date of judgment: 20 December 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders changing the children’s residence from mother to father following a finding that the mother posed an unacceptable risk of harm to the children due to her belief that the children had been subjected to sexual abuse by the father – Where the children are currently aged 4 and 6 – Where the primary judge ordered no time with the mother – Where the primary judge failed to give consideration of methods of risk amelioration before considering no time as a last resort – Error established – Appeal allowed – Matter remitted for re-hearing on discrete issue – Costs certificates granted for the appeal.
Legislation:

Family Law Act 1975 (Cth) Part VII, ss 43(1)(c), 60B, 60CA, 60CC, 65DAA

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

United Nations Convention on the Rights of the Child

Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

B and B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997] FamCA 33

Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Blinko & Blinko [2015] FamCAFC 146

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Director-General, Department of Community Services; Re Thomas (2009) 41 Fam LR 220; [2009] NSWSC 217

Fairfield & Hoffman (2021) FLC 94-045; [2021] FamCAFC 151

Helbig & Rowe [2016] FamCAFC 117

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

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253

Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

R & C [1993] FamCA 62

Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

Summerby & Cadogen [2011] FamCAFC 205

Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

Willmore & Menendez [2022] FedCFamC1A 73

O v S (Palmerston North, FAM 2003-054-000859, 21 January 2005)
Number of paragraphs: 76
Date of hearing: 5 December 2022
Place: Heard in Brisbane, delivered in Sydney
Counsel for the Appellant: Mr Williams KC with Ms Horsley
Solicitor for the Appellant: KLM Solicitors
Counsel for the Respondent: Mr Alexander with Mr Thwaites
Solicitor for the Respondent: O’Reilly & Sochacki Lawyers
Counsel for the Independent Children's Lawyer: Mr Priestley
Solicitor for the Independent Children's Lawyer: McVittie Legal

ORDERS

NAA 184 of 2022
BRC 10040…

Continue reading Bielen & Kozma

Sign in free to access the full text

Details
AGLC
Bielen & Kozma [2022] FedCFamC1A 221
Case
[2022] FedCFamC1A 221
Decision Date

CaseChat Overview and Summary

Bielen & Kozma involved a dispute between the parents of two children over their care and welfare, following their separation. The father sought an order for the children to live with him and for the mother to have no contact with the children, citing concerns about the children's safety. The case proceeded through the Federal Circuit Court of Australia, culminating in a final hearing over five days in two parts. At the conclusion of the hearing, interim orders were made for the children to spend time with the father, and final orders were made for the children to live with the father, with no contact with the mother unless otherwise agreed in writing.

The legal issues before the court included whether the primary judge had erred in failing to consider certain statutory provisions in determining the children's best interests. Specifically, the court needed to determine whether the primary judge had failed to consider the potential benefit to the children of continuing to enjoy a meaningful relationship with their mother, as required by s 60CC(2)(a) of the Family Law Act 1975 (Cth). The court also needed to determine whether the primary judge had failed to consider other relevant factors, such as the children's need to have a stable and secure environment, as required by s 60CC(3) of the Act.

The court found that the primary judge had erred in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d). The court held that the primary judge's failure to consider these provisions amounted to an appellable error, as it was a failure to exercise the discretion entrusted to the court. The court found that the primary judge's decision to sever the children's relationship with their mother was disproportionate to the identified risk, and that steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk.

The court allowed the appeal and remitted the matter to the Federal Circuit Court of Australia for rehearing. The court noted that the primary judge had made findings that the mother posed an unacceptable risk to the children and that time and communication between the mother and the children must cease. However, the court found that the primary judge had failed to consider the potential benefit to the children of continuing to enjoy a meaningful relationship with their mother, and had failed to consider other relevant factors, such as the children's need to have a stable and secure environment. The court held that these failures amounted to an appellable error, and that the primary judge's decision to sever the children's relationship with their mother was disproportionate to the identified risk. The court allowed the appeal and remitted the matter to the Federal Circuit Court of Australia for rehearing, with directions to consider the relevant statutory provisions and to make orders that were in the children's best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

We have upheld the appeal primarily on the basis that, in circumstances where the primary judge had identified an unacceptable risk of the children suffering psychological harm in the care of the mother, the primary judge failed to consider whether steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk. The indefinite severance of the children’s relationship with their mother was, in those circumstances, disproportionate to the identified risk.Background It is useful to set out the background to this appeal which has been helpfully detailed in the parties’ respective Summaries of Argument. The parties married in 2015 and separated in May 2019. There are two children of the parties’ relationship, X, born in 2016 who is six years of age, and Y, born in 2018 who is four years of age (“the children”). Following the parties’ separation in 2019, the children lived primarily with the mother and spent limited time with the father (on a supervised and, at times, unsupervised basis). Time ceased and recommenced at various points in time and can be broadly summarised as follows:·Between May 2019 and July 2019, the mother withheld the children.·Between July 2019 and December 2019, the mother allowed daytime contact two days per week.·Between January and March 2020, the mother increased contact to 3–4 hours during the day, 3–4 days per week.·In May 2020, the mother ceased unsupervised time.·In June 2020, the mother ceased all time.·In January 2021, orders provided for supervised contact to commence for 2 hours, twice per week.·On 19 March 2021, orders were made for unsupervised time to commence twice per week.·In late July 2021, the mother breached orders and ceased all time. This remained until the commencement of the hearing. Following separation, there were some 26 reports made to the NSW Department of Communities and Justice as well as numerous calls to NSW Police as to risk of sexual harm to children. Most were made by the mother. The father commenced proceedings on 29 July 2020 in the Federal Circuit Court of Australia (as it was then known). A Family Report was released in December 2020 and an updated Family Report was subsequently released in February 2022. As at the commencement of the final hearing in May 2022, the children were living with the mother and had not spent time with the father in the preceding 10 months. The final hearing proceeded before the primary judge over five days in two parts, being from 23–25 May 2022 and 1–2 June 2022. At the conclusion of the last day of hearing, interim orders were made for the children to spend time with the father to the exclusion of the mother until the return of the proceedings on 1 August 2022. On the return date, the primary judge delivered her reasons for judgment and made final orders which inter alia provided for:(a)the children to live with the father;(b)the children to spend no time with, and have no communication with the mother “unless otherwise agreed to in writing between the parties”; and(c)a restraint against the mother from attempting to spend time with or communicate with the children.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

For reasons which we subsequently explain, we are of the opinion that the primary judge was in error in failing to consider s 60CC(2)(a) and any factor contained within s 60CC(3), particularly s 60CC(3)(d).ConsiderationGrounds 1 and 2 Mere failure to refer to a relevant statutory provision does not establish an appellable error (Willmore & Menendez [2022] FedCFamC1A 73 at [93] (“Willmore”) and the cases cited therein). However, the mandatory legislative direction set out in s 60CC(1) of the Act that, in determining what is in the child’s best interests, “the court must consider the matters set out in subsections (2) and (3)” requires the Court to give “proper, genuine and realistic consideration” to those matters that are relevant to the circumstances of the case (Lovett & McGregor (2019) FLC 93-935 at [72]). The failure to take into account a relevant material consideration set out in s 60CC(2) and/or s 60CC(3) amounts to a failure to exercise the discretion entrusted to the Court and constitutes an appellable error within the principles adumbrated in House v The King (1936) 55 CLR 499 at 504–505 and Bondelmonte at [32]–[33]. It is often the case that a trial judge will specifically note, in the body of the judgment, that they have considered relevant statutory provisions but have not specifically referred to them because they have not regarded the consideration or considerations as being relevant or, more accurately, sufficiently relevant to the issues to be determined in the proceedings. Such an approach is entirely appropriate. It is not necessary for a judge, who is exercising a discretionary judgment, to detail each factor which they have found to be relevant or irrelevant to the decision that he or she has made, providing that the reasoning for arriving at their decision is sufficiently clear (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). Equally, it may be apparent from the reasons for judgment of a trial judge, that they have considered a relevant statutory criteria even though they have not made specific reference to it. As noted, such an approach does not give rise to appellable error (Willmore). However, neither of those scenarios occurred in this case. At [136] of her reasons for judgment, the primary judge specifically stated:As findings have been made as to the mother posing an unacceptable risk to the children and that time and communication between the mother and the children must cease then it is unnecessary to explore the remaining primary consideration and additional considerations contained in section 60CC.(Emphasis added)Ground 1 As there are only two primary considerations set out in s 60CC(2), it must necessarily be the case that the primary judge’s reference to the “remaining primary consideration” is a reference to s 60CC(2)(a), that is, the potential benefit to the children of continuing to enjoy the benefit of having a meaningful relationship with their mother who, at the time of the orders, was the primary attachment figure of these young children.