Bower & Marshall (No 2)

Case [2022] FedCFamC1A 159

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Bower & Marshall (No 2) [2022] FedCFamC1A 159

Appeal from: Bower & Marshall [2022] FedCFamC2F 349
Appeal number(s): NAA 52 of 2022
File number(s): PAC 5345 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 11 October 2022
Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal from the dismissal of interim parenting orders regarding the appellant’s application for supervised time with the child and interim property orders concerning an application for partial property distribution to provide the appellant with funds to meet his legal costs – Whether the primary judge displayed an apprehension of bias – Whether the primary judge erred in setting down the matter for final hearing and pre-judging the appellant’s interim application – Adequacy of reasons – Whether the orders prevented the child from having a meaningful relationship with both parents – Leave to appeal required for interim property orders – Application for leave to appeal refused – Appeal dismissed – Appellant to pay costs of respondent in fixed sum amount.
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 43, 60B(1)(a), 60CC, 69ZN, 79(4), 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(b)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 12.17, 13.03(1), 15.06

Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) reg 4.02(1)(a)

Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005
Cases cited:

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

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

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

Australian Competition and Consumer Commissioner v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802

Black & Decker (Australasia) Pty Ltd v GMCA Pty Ltd [2007] FCA 1623

Blinko & Blinko [2015] FamCAFC 146

British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Cotton & Cotton (1983) FLC 91-330

de Winter v de Winter (1979) FLC 90-605

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edhouse & Edhouse [2022] FedCFamC1A 84

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Graham & Squibb

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AGLC
Bower & Marshall (No 2) [2022] FedCFamC1A 159
Case
[2022] FedCFamC1A 159
Decision Date

CaseChat Overview and Summary

The appeal in Bower & Marshall (No 2) was filed against orders made by a judge of the Federal Circuit and Family Court of Australia, Division 2, on 23 February 2022. The appellant, Mr Bower, sought an interim order for the child, X, to spend supervised time with him, pending the final hearing of the matter. He also sought an order for partial property distribution to provide him with funds to meet his legal costs. The orders were made in the context of ongoing proceedings between the parties, who have a child together, and the appellant's criminal prosecution for alleged acts of violence against the mother, Ms Marshall. The appeal concerned the primary judge's handling of the interim orders and whether the court had erred in various respects, including in setting down the matter for final hearing and pre-judging the interim application.

The appeal raised several legal issues, including whether the primary judge displayed an apprehension of bias, whether the primary judge erred in setting down the matter for final hearing and pre-judging the interim application, and whether the primary judge's reasons were adequate. The appeal also addressed the adequacy of reasons, the impact of the orders on the child's relationship with both parents, and the need for leave to appeal the interim property orders. The Full Court assessed the appeal against the principles set out in House v The King and Norbis v Norbis, which require the appellant to establish grounds for appellate intervention, such as the primary judge acting on a wrong principle, allowing extraneous matters to affect the decision, mistaking facts, failing to consider material factors, or making an unreasonable or plainly unjust decision. The Full Court also considered whether the primary judge's reasons were sufficient to demonstrate how the decision was arrived at.

The Full Court dismissed the appeal and refused leave to appeal the interim property orders. The court found that the primary judge's handling of the interim orders was consistent with the statutory requirements, and that the orders were in the best interests of the child, given the allegations of domestic violence and the mother's PTSD. The court held that the primary judge had not displayed an apprehension of bias, had not pre-judged the interim application, and had provided adequate reasons. The Full Court also found that the primary judge's decision to set down the matter for final hearing was not an error, and that the orders did not prevent the child from having a meaningful relationship with both parents.

The court ordered that the appeal be dismissed and that the appellant pay the respondent's costs in the sum of $4,356 within 28 days of the date of the orders. The Full Court's decision underscores the importance of the primary judge's discretion in family law matters and the need for the appellant to establish clear grounds for appellate intervention.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. Within 28 days of the date of these orders, the appellant pay the costs of the respondent in the sum of $4,356.

Background

Background to the litigation

This is an appeal from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) on 23 February 2022, dismissing an Application in a Proceeding filed 25 November 2021 in which Mr Bower (“the appellant”) sought an interim order for the child, X (“the child”), to spend supervised time with him pending the final hearing of the matter. Additionally, the appellant sought an order for partial property distribution to provide him with funds to meet his legal costs in respect to a criminal prosecution and also in respect to these proceedings.Background The appellant was born in 1986 and the mother, Ms Marshall (“the respondent”), was born in 1991. The respondent also has a child from a previous relationship, B who was born in 2012. The parties commenced their relationship in 2014. The child was born in 2016 and is now 6 years old. It was not disputed that the respondent has been the primary carer of the child since she was born. The appellant contends, however, that he also assisted the respondent in caring for both the child and B. The respondent contends that during the course of the parties’ relationship and subsequent to its termination, she has been subjected to a pattern of coercive and controlling conduct including serious acts of violence perpetrated by the appellant, the most serious of which involved allegations that the appellant had engaged in acts of non-fatal strangulation. In early 2021, the appellant was charged with criminal offences in relation to an alleged incident of assault that the respondent contends occurred in January 2020. When the matter was listed before the primary judge, it was accepted that those criminal proceedings were listed for hearing mid 2022. It was further accepted during the course of the appeal that those criminal proceedings are now listed for hearing late 2022. On 30 November 2020, the parties entered into consent orders for the child to spend supervised time with the appellant every second weekend in the presence of the child’s paternal grandparents. The parties experienced ongoing difficulties in respect to their relationship and, as and from February 2021, the child has not spent time with the appellant. In the proceedings before the primary judge, the respondent contended that the child would be subjected to psychological harm if the child spent time with the appellant, including if that time was to be supervised. The respondent further contended that as result of being subject to a pattern of coercive and controlling conduct by the appellant, including acts of significant family violence, she suffers from post-traumatic stress disorder (“PTSD”). The respondent argues that the prospect of her engaging in communication with the appellant and/or the prospect of the child spending time with the appellant would cause an exacerbation of her condition such that it would adversely impact upon her parenting capacity and thereby vicariously adversely impact upon the child.

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

As noted by the Full Court in Edhouse & Edhouse [2022] FedCFamC1A 84 at [13]–[14]:13.The orders which are the subject of appeal were the result of the exercise of a discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, that is, appellate intervention may be required where the primary judge:(a) Acts upon a wrong principle; or(b)Allows extraneous or irrelevant matters to guide or affect the decision; or(c) Mistakes the facts; or(d) Fails to take into account some material consideration; or(e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.14An appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen [2021] FedCFamC1A 46, the Full Court recently stated at [38] that: The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).Consideration Identification of the judgment In this matter, it was contended that the primary judge had impermissibly modified his ex tempore reasons for judgment by making alterations and additions to that which had been transcribed and, consequently, changed the substance of the judgment contrary to the principles adumbrated by the High Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257 at [34]. Specifically, it was contended by counsel for the appellant that the primary judge modified those paragraphs which are now included the published version of his judgment at [17], [33]–[35]. The corresponding paragraphs were originally recorded in the transcription of the ex tempore reasons for judgment as [14], [30] and [31]. For reasons which I explain, even when the originally transcribed paragraphs of the judgment are considered, the appeal must be dismissed and, accordingly, it is unnecessary for me to determine whether the judge has impermissibly altered the substance of the relevant paragraphs to which I have referred. Instead, I will not read [17], [33]–[35] of the primary judge’s published reasons for judgment but rather, will read [14], [30] and [31] of the transcription of the ex tempore reasons for judgment, which are as follows: 14.The [appellant] has, however, obtained the benefit of the ongoing psychologist’s support that he has identified in his evidence. The Court is of the view that the concerns identified in the [respondent’s] evidence outweigh the arguments advanced by [the appellant’s counsel] in respect of his own client’s mental health, and, that is, the child is in the care of the mother in the circumstances where there has been identified serious allegations of domestic violence which are due to be tried in July. …30.Insofar as the approach in relation to part 7, the Court is required to follow the statutory pathway identified in Goode & Goode. There is no issue in the present case other than the limited issue in respect of supervised access. And in that regard it is the best interests of the child that is the paramount consideration and this was advanced by the counsel for the respondent mother. The Court must take into account the obligations under section 60CC(2) to prevent the child suffering harm. In the context of this case the Court is satisfied that it would not be in the best interests of the child at this stage for the [appellant] to commence contact time, albeit, supervised.31.The Court has already identified that it is not satisfied that it is proper to make an order in relation to the proceeds of the matrimonial home.Ground 10:10.The Primary Judge displayed an apprehension of bias, in predetermining the application, prior to the submissions of the ICL, being considered.