Brauner & Brauner (No 2)

Case [2025] FedCFamC1A 67

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 2019

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

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:

  1. Since March 2020, which was some months after final separation, two…

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Details
AGLC
Brauner & Brauner (No 2) [2025] FedCFamC1A 67
Case
[2025] FedCFamC1A 67
Decision Date

CaseChat Overview and Summary

This appeal concerns the parenting arrangements for two children, X and Y, following the separation of their parents, the appellant and the respondent. The parents were married in 2007 and separated in 2019, leading to proceedings under the Family Law Act 1975 (Cth). The primary dispute is over the suitability of the appellant as a primary carer for the children, given concerns about her mental health and the children's reluctance to live with her. The appeal was lodged against the orders made by the Federal Circuit and Family Court of Australia (FCFCOA), which had been influenced by the Children's Court of Victoria's decisions.

The legal issues before the court involved whether the primary judge had misapplied evidence, failed to consider relevant evidence, and demonstrated bias in favour of the respondent. The appellant argued that the primary judge had not properly identified the nature of her psychiatric ill-health, misrepresented facts, and ignored objections to certain evidence. The court had to determine if the appeal grounds were valid and whether they undermined the primary judge's decision. Specifically, the court examined whether the primary judge's reliance on expert evidence regarding the appellant's mental health was justified and whether the primary judge had adequately considered all evidence presented.

The court found that the primary judge had not misrepresented facts or shown bias. The evidence presented by Dr E, the forensic psychiatrist, was sufficient to support the primary judge's findings on the appellant's psychiatric health. The court also noted that the appellant's evidence, which was not properly tendered, could not be considered. The court concluded that none of the grounds for appeal were substantiated, as the primary judge had acted within his discretion and properly exercised his judicial powers. Therefore, the appeal was dismissed.

The court issued a formal order dismissing the appeal filed on 25 November 2024. The reasons for the judgment were documented and may be subject to minor corrections or variations as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 318 of 2024

MLC 14605 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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