Brauner & Brauner (No 2)
[2025] FedCFamC1A 67
•16 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Brauner & Brauner (No 2) [2025] FedCFamC1A 67
Appeal from: Brauner & Brauner (No 2) [2024] FedCFamC1F 748 Appeal number: NAA 318 of 2024 File number: MLC 14605 of 2019 Judgment of: ALSTERGREN CJ, BAUMANN & WILLIAMS JJ Date of judgment: 16 April 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from parenting orders – Where the appellant submits the primary judge has misrepresented facts in direct bias, wilfully misapplied evidence, wilfully ignored objections to evidence, intentionally misrepresented facts in favour of the other party, and intentionally misrepresented facts against the children – Dissatisfaction with outcomes does not amount to bias – Where none of the appeal grounds have been established – Appeal dismissed Legislation: Family Law Act 1975 (Cth) Parts VII, VIII, s 60CC Cases cited: Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Brauner & Brauner [2025] FedCFamC1A 15
CDJ v VAJ (1998) 197 CLR 172
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Newett & Newett (No 2) [2021] FLC 94-051; [2021] FedCFamC1A 11
Number of paragraphs: 71 Date of hearing: 7 March 2025 Place: Melbourne The Appellant: Litigant in person The Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Did not participate ORDERS
NAA 318 of 2024
MLC 14605 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BRAUNER
Appellant
AND: MR BRAUNER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALSTERGREN CJ, BAUMANN, WILLIAMS JJ
DATE OF ORDER:
16 APRIL 2025
THE COURT ORDERS THAT:
1.The Notice of Appeal filed 25 November 2024 is dismissed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brauner & Brauner has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, BAUMANN & WILLIAMS JJ:
Since March 2020, which was some months after final separation, two children, then aged 11 and 9 years have lived with the respondent. A long history of litigation, initially in the Children’s Court of Victoria, then in the Federal Circuit Court of Australia (“the FCC”) ultimately resulted in a final parenting hearing before a judge of this Court. On 8 November 2024, the primary judge made Orders (“the 8 November 2024 orders”) which did not disturb the children’s living arrangements.
By a Notice of Appeal filed 25 November 2024, the appellant appeals the 8 November 2024 orders. Those orders provide for the respondent to have sole parental responsibility for the children, the children to live with him, and spend supervised time with the appellant.
The respondent did not file a Summary of Argument and although he attended the appeal hearing, he did not make submissions.
The Independent Children’s Lawyer did not file a Submitting Notice nor attend the appeal hearing.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The parties commenced cohabitation in 2001, married in 2007, and separated on 19 August 2019 when the respondent moved out of the family home.
The two children, who are the focus of this appeal are X, now aged 16 years, and Y, now aged 14 years.
In late 2016, the respondent was sectioned as an involuntary patient after a suicide threat. Upon his discharge, the parties continued to reside together as a family unit until separation.
In late 2019, an Interim Intervention Order was made against the respondent which prevented him spending time with the children. In December 2019, the respondent commenced proceedings under Parts VII and VIII of the Family Law Act1975 (Cth) (“the Act”) seeking inter alia, orders for the children to live with him.
On 10 March 2020 the proceeding in the FCC was effectively stayed as a result of the Department of Families, Fairness and Housing (“DFFH”) obtaining an emergency care order in the Children’s Court of Victoria (“the Children’s Court”). The orders of the Children’s Court placed both children in the respondent’s care.
On 21 April 2020 Dr E, forensic psychiatrist, interviewed both the appellant and the respondent and prepared a psychiatric assessment of both parties. On 23 November 2023, Dr E conducted a further psychiatric assessment of the parties.
During the Children’s Court proceedings, two reports from a senior forensic psychologist, Dr G, were ordered and relied upon. The first report is dated 1 June 2021, and the second report is dated 5 November 2021.
On 15 August 2022, contrary to objections of both the appellant and the respondent, the Magistrate in the Children’s Court proceeding permitted the DFFH to withdraw from the proceeding. At [6] and [7] of her reasons the Magistrate said:
6.[X]’s legal representative told the court the [X] does not wish to live with or have contact with [the appellant] but is open to seeing [the appellant] some time in the future. [Y]’s legal representative told the court that [Y] does not wish to live with [the appellant] or have any contact with her.
7.Given the children’s views, there is no possibility at all that the court would consider making an order which has the effect of placing the children in the care of the [appellant]. As the Department has identified no protective concerns in the children’s current placement, it is clear that the children are no longer in need of protection, and that the question of contact between the children and [the appellant] can be addressed by parenting orders under the Family Law Act 1975. Accordingly, I decided to grant the Department leave to withdraw the Protection Applications in respect of the two children.
Thereafter the proceeding resumed in Division 2 of the Federal Circuit and Family Court of Australia (“FCFCOA”). Pursuant to an Order made on 12 September 2022, a Family Report dated 22 March 2023 was prepared by a Family Consultant, Dr D.
On 19 February 2024, orders were made for the children to spend time with the appellant at the C Family Services for two hours each calendar month. The proceedings were then transferred to Division 1 of the FCFCOA for final hearing.
On 27 February 2024, procedural orders were made setting the matter down for a final hearing of four days to commence on 15 April 2024. Order 5 of the procedural orders provided that:
…any documents annexed or exhibited to affidavits will not be accepted as evidence in the proceeding unless and until it is tendered in evidence at the trial and accepted into evidence by the Court.
The importance of this direction will become apparent below.
The trial was conducted over four days, with all parties represented for the first three days (15 to 17 April 2024) and the appellant representing herself on the final day (10 May 2024). Judgment was delivered on 8 November 2024, when final orders were pronounced.
THE APPEAL
Because the appellant was unrepresented, it is helpful to set out some applicable principles:
(a)The appellant bears the onus of establishing that the primary judge’s decision is not correct (Australian Coal and Shale Employees’ Federation v the Commonwealth (1953) 94 CLR 621).
(b)This appeal is from a discretionary judgment, and it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 (“House v the King”) at 504–505 must be established. There, the majority of the High Court of Australia (“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 …
(c)The weight given to the evidence is a matter quintessentially for the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519 – 520).
The appellant’s Notice of Appeal raises five grounds of appeal, with the appellant conceding that there was some “overlap” between the grounds. Contrary to the appellant’s obligation to precisely identify asserted error in the judgment under appeal (Newett & Newett (No 2) (2021) FLC 94-051 (“Newett & Newett (No 2)”) at [34], quoting Bahonko v Sterjov (2008) 166 FCR 415 at [3]) neither the Notice of Appeal and Summary of Argument precisely identify asserted error on the part of the primary judge, but rather assert numerous complaints about and failures of the primary judge to accept the appellant’s evidence during the trial.
We observe that there was no transcript available to assist in the appeal because the appellant was unsuccessful in her application for the Court to fund the costs of the transcript (Brauner & Brauner [2025] FedCFamC1A 15).
On 5 March 2025, two days prior to the appeal hearing, the appellant filed an affidavit pertaining to alleged non-compliance by the respondent with the orders made by the primary judge. The appellant did not file an Application in an Appeal seeking to adduce further evidence. The appellant was advised the affidavit would not be received into evidence, and in any event, the affidavit did not identify any error on the part of the primary judge.
Turning now to the Grounds of Appeal.
Ground 3: The primary judge has intentionally misrepresented facts in direct bias against the appellant
Whilst it is difficult to precisely identify the appellant’s complaints as articulated in the grounds, we assume that under Ground 3 the appellant’s complaint that the primary judge “misrepresented facts in a direct bias against me” is an assertion of bias on the part of the primary judge. Authority requires such ground to be dealt with first because, grounds of appeal in relation to bias are challenges to the integrity of the administration of justice (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at [117] (Kirby and Crennan JJ).
The particular allegation in Ground 3, is repeated more generally in Grounds 1, 2, 4 and 5 where the appellant asserts the primary judge “wilfully misapplied evidence”; “wilfully ignored my objection to evidence” and “intentionally misrepresented facts in favour of [Mr Brauner]… and against the children”.
This ground is drawn broadly and unaided by submissions that distinguish between a contention as to apprehended bias as opposed to actual bias.
To establish actual bias, the appellant must show the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]). Nowhere in the grounds of appeal, the Summary of Argument or oral submissions did the appellant attempt to do so.
The relevant test to be applied to determine apprehended bias is set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”), where the plurality of the High Court said:
6… a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(Footnotes omitted)
The application of the apprehension of bias principle involves a two-step analysis. First, the identification of what is said might lead a decision maker to decide a case other than on its legal and factual merits, and second, the articulation of a logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]). Per Ebner, once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.
Nowhere in her Summary of Argument nor oral submissions does the appellant specifically identify either the first step in the required analysis, nor the logical connection between the matter and the feared departure from the judge deciding the case on its merits (Ebner at [8]) nor any factors or considerations relevant to the assessment of the reasonableness of the asserted apprehension of bias.
During the appellant’s oral submissions, it became clear that the contention of “wilful” conduct was more a complaint about the result of the litigation. The appellant’s mere dissatisfaction with the result, however passionately held and subjectively genuine, is never evidence of judicial bias (Newett & Newett (No 2)) at [59] to [80]).
The complaints of bias are rejected, and Ground 3 fails.
Prior to dealing with the remaining grounds, we observe the general submissions made in the appellant’s Summary of Argument. Each asserted ground of appeal refers to the summary of findings by the primary judge at [169] to [189], and in particular the primary judge’s findings under s 60CC(2)(a); 2(b); 3(a); 3(c) and 3(k) of the Act. The appellant repeatedly submitted that the primary judge:
·Has denied the children a meaningful relationship with the appellant.
·Failed to protect the children from the harm arising from the respondent.
·Denied the appellant the opportunity to participate in the children’s lives.
·Has intentionally exposed the children to family violence by misrepresenting facts which identify that a parent is causing harm to them and denying the role of the appellant as a protective parent.
To this extent, these broad submissions might be constituted as a submission that the orders were unreasonable or plainly unjust so that they fall outside a reasonable exercise of judicial discretion, we reject such a submission.
Ground 1: The primary judge wilfully misapplied evidence in an attempt to justify his finding of the ‘[appellants] psychiatric ill-health’
Under this ground, the appellant, in her Summary of Argument, contends the primary judge:
…never states what the ‘psychiatric ill-health’ is, nor does he reference any medical diagnostic to supports [sic] his finding. This is in direct contradiction of extensive medical evidenced provided to [the primary judge] throughout the hearing which proves there is no diagnosed ‘psychiatric ill-health’. Thus, I say that [the primary judge] has wilfully misapplied medical evidence in an attempt to justify his false narrative of me.
The appellant’s complaints fall into two categories. First, the failure of the primary judge to specifically identify both the nature of the appellant’s psychiatric ill health and the evidence which supports the finding. Secondly, the primary judge’s failure to consider or give weight to her contrary evidence. We deal with each category of complaint.
A perusal of the reasons demonstrates the primary judge had ample available evidence to support his finding at [171] of the appellant’s psychiatric ill health. In reaching his conclusion the primary judge, as he was entitled to do, accepted and relied upon the opinion and evidence of Dr E, the single expert forensic psychiatrist, which evidence was not disturbed by challenge. The opinion of Dr E was supported by both Dr G and Dr D. We do not accept it was necessary for the primary judge to state a specific “diagnosis”. It was sufficient for him to find, as he did, the appellant “is psychiatrically very unwell” and such finding was clearly open on the evidence.
The appellant’s contention that the primary judge failed to consider or give persuasive weight to “evidence” she asserts was before the primary judge fails for two reasons.
Firstly, it is not clear that the “support letters” relied upon by the appellant which were attached and referred to in her Outline of Case, were properly tendered during the hearing before the primary judge. As referred to above, Order 5 of the procedural orders made on 27 February 2024 required any documents annexed or exhibited to affidavits to be tendered and accepted into evidence by the Court, to be considered as evidence in the proceeding. The support letters are not included in the List of Exhibits, and we therefore infer the support letters were not evidence before the primary judge. We observe the respondent was represented by counsel until the final day of the hearing, and that the report of Ms B dated 5 December 2019 was tendered during the trial and was evidence before the primary judge. The appellant cannot sustain a complaint that the primary judge failed to consider evidence which was not properly before the Court.
As to the evidence of Ms B, the scope of her professional qualifications is unclear. In her report dated 5 December 2019, she describes herself as a “Child and Family Neuro-Psychotherapist and Counsellor; Attachment and Bonding Analyst”. Her involvement with the parties apparently arose from counselling both parties.
The primary judge was aware of this assessment, as was the family report writer Dr D, who at paragraph 39 of the Family Report says (in respect of this very issue) that:
It also was perhaps quite significant that she spent several occasions referring the writer to the absolute truth of her favourable reports, and that he must believe them, especially that by Ms B and that such proved her version of events of the respondent as an abuser and as a severe ongoing risk to the children. However, when again the writer suggested there were other clinical reports of her behaviour that were completely contradictory to the perspective given by those favourable to her, and what was her response to such, she simply could not countenance the contents of such reports and indicated that they all were part of the conspiracy against her, especially for her daring to challenge the all-mighty power of DFFH and the Courts.
(As per the original)
In reaching his conclusion as to the appellant’s mental health, as he was entitled to do, the primary judge preferred and relied upon the recent expert opinion of Dr E.
Secondly, as to the complaint that the primary judge failed to accord sufficient weight to the appellant’s contrary medical evidence, the only such opinion properly in evidence was that of Ms B, which by the date of the trial was nearly five years old.
The difficulty of challenging a primary judge’s attribution of weight on appeal is well known. As stated in Gronow & Gronow (1974) 144 CLR 513 at [519]:
…An appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessment of matters of weight.
The weight or importance given to evidence is a matter quintessentially for the primary judge unless an appellant can show the primary judge was plainly wrong (CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J).
The appellant did not demonstrate nor even attempt to address how the primary judge was “plainly wrong”.
This ground must fail.
Ground 2: The primary judge wilfully ignored the appellant’s objection to evidence from the other party
In so far as the appellant complains of bias under this ground, we have dealt with that contention above.
As to the remaining complaint under this ground, the appellant asserts the primary judge permitted the respondent to rely on evidence obtained from a local H Service and a Notice of Risk filed by the respondent on 28 April 2020, and in doing so ignored her objections. The appellant apparently objected to the limited production of material from the H Service as from November 2021, when she asserts the H Service had been involved with the respondent since October 2016, when he had threatened to kill himself. The appellant also asserts the documents so produced had been interfered with to disadvantage her case.
In the absence of a transcript, during her oral submissions, the appellant was unable to identify how or when the primary judge ostensibly rejected her objections to the evidence.
This ground must fail.
Ground 4: The primary judge has intentionally misrepresented facts in favour of the respondent
Again, in so far as the appellant complains of bias under this ground, we have dealt with that contention above.
Under this ground the appellant complains, in reaching his determination about the mental health and stability of the respondent, the primary judge relied upon the evidence of Dr E and Dr D and ignored the evidence of the respondent’s historical mental health, which was recorded in the respondent’s own affidavit, the appellant’s affidavits, Notice of Risk and her submissions.
Exhibit H-2 is a document which was Annexure C to the appellant’s trial affidavit. The document comprehensively details the appellant’s allegations of family violence against the respondent, his mental health problems, and alleged noncompliance with orders between October 2019 and 27 July 2023.
At [22] the primary judge referred to the document:
The [respondent] tendered into evidence (marked exhibit H-2) a schedule annexed to the [appellant]’s trial affidavit, prepared by her, of alleged family violence incidents and breaches of intervention orders by him. That document, comprised of 50 pages, spans the period between 7 September 2019 and 27 July 2023. As referred to above, he denies the [appellant]’s allegations and, other than the incident in [late] 2019, to which I refer below, he denies them. He has not been convicted in relation to any of them and the children have been in his care and spent very limited, supervised time with the appellant since March 2020.
…
Albeit that the [appellant]’s schedule was tendered by the [respondent], for the purpose of demonstrating the [appellant]'s obsessive and misconceived approach to the dispute between them, she at no stage sought to tender the underlying documents on the basis of which that schedule was said to be prepared.
The primary judge was obviously aware of and did not ignore the appellant’s allegations about the respondent. The primary judge took into account and weighed the evidence of Dr E, Dr D and the evidence of the respondent’s historical mental health and conduct and ultimately reached the conclusion he did, which conclusion was supported by the evidence. To point to contrary evidence does not establish error on the part of the primary judge.
If the challenge is to the weight to be accorded to the evidence, we have above under Ground 1, dealt with the difficulty of challenging a primary judge’s attribution of weight on appeal.
Ground 5: The primary judge has intentionally misrepresented facts against the children
The appellant’s complaint under this ground is that the finding of the primary judge as to the children’s expressed wishes, is not supported by the evidence, because his Honour failed to take into account evidence in the appellant’s affidavits and other filed documents, which she contends demonstrate the children’s correct views.
The appellant contends the children’s views differed from those recorded by the primary judge, so that “the children want to live with [the appellant]” and X and Y had “said that each time they have gone to Child Protection”.
In support of her contentions, the appellant relied on DFFH case plan screenshots between May 2020 and February 2024 attached to her Notice of Appeal, and the evidence of the contact supervisor Ms F. It is not clear whether the screen shots were in evidence at the trial, as they are not referred to in the List of Exhibits. The report of the contact supervisor supports a warm interaction between the appellant and X during the one observed visit, which took place on 4 April 2024. Y did not wish to participate because he felt awkward about the visit.
An examination of the reasons demonstrates the primary judge undertook a careful historical review of the children’s expressed views.
At [41], the primary judge recorded what Dr G understood the children to have said to DFFH in October 2021 which was that they “continue to decline any contact with [the appellant] (face to face or virtual)”.
At [50], the primary judge referred to an updated confidential court report dated 30 May 2022 prepared by DFFH for the Children’s Court proceeding, where the children indicated “they wished to continue to live with [the respondent] and did not wish to have contact with the appellant at that time”.
At [54], the primary judge referred to the reasons of the presiding Magistrate in the Children’s Court proceeding mentioned above.
At the time of the final hearing, the best evidence of the children’s views is to be found in the Family Report of Dr D at paragraphs 45 to 52 (X) and paragraphs 53 to 58 (Y).
The primary judge accurately recorded that evidence of the children’s views in his reasons, and his reliance upon the evidence was well open to him.
Even if the children’s views were as stated by the appellant, which we do not accept, the obligation of the primary judge under the Act, as expressed at s 60CC(3)(a) is to consider the children’s views, which he did at [173] and thereafter afforded them appropriate weight. There is no obligation for the primary judge to give effect to a child or children’s expressed views.
If the ground is a challenge to weight afforded to the children’s views, we have above under Ground 1, dealt with the difficulty of challenging a primary judge’s attribution of weight on appeal.
This ground must fail.
DISPOSITION
None of the grounds of appeal have been established and the appeal must be dismissed.
Where the respondent did not participate in the hearing of this appeal, no question of costs arises for determination.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren and Justices Baumann & Williams. Associate:
Dated: 16 April 2025
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