Cheadle & Pointer
[2023] FedCFamC1A 191
•7 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cheadle & Pointer [2023] FedCFamC1A 191
Appeal from: Pointer & Cheadle (No 2) [2023] FedCFamC1F 602 Appeal number(s): NAA 219 of 2023 File number(s): SYC 7392 of 2013 Judgment of: ALDRIDGE, TREE & CAREW JJ Date of judgment: 7 November 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Weight challenges – Where the mother cannot now construct a different case on appeal than at first instance – Where the order for supervised time between the child and the mother is not a delegation of judicial power – Where the reasons are clear and able to be ascertained – Where no ground of appeal enjoyed merit – Appeal dismissed – Costs ordered in favour of Independent Children’s Lawyer. Legislation: Family Law Act 1975 (Cth) s 68B Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Cheadle & Pointer [2020] FamCAFC 277
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Keighley & Keighley [2023] FedCFamC1A 146
Metwally v Universityof Wollongong (1985) 60 ALR 68; [1985] HCA 28
Re David (1997) FLC 92-776; [1997] FamCA 48
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 32 Date of hearing: 31 October 2023 Place: Sydney Counsel for the Appellant: Mr Jackson Solicitor for the Appellant: Fifty Fifth Lawyers The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: MCW Lawyers ORDERS
NAA 219 of 2023
SYC 7392 of 2013FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CHEADLE
Appellant
AND: MR POINTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALDRIDGE, TREE & CAREW JJ
DATE OF ORDER:
31 OCTOBER 2023
ON 31 OCTOBER 2023 THE COURT ORDERED THAT:
1.The appeal is dismissed.
2.The appellant will pay the costs of the Independent Children’s Lawyer fixed in the sum of $4,301 within three months of today.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Cheadle & Pointer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & CAREW JJ:
INTRODUCTION
On 21 July 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders in relation to the parties’ 10-year-old child.
The mother appealed those orders. The father and the Independent Children’s Lawyer (“ICL”) both resisted the appeal. On 31 October 2023, we dismissed the appeal for reasons to be published later. These are those reasons.
BACKGROUND
The primary judge set out some relevant background at [8]–[12] as follows:
8.The father was born in 1979 and is currently 43 years of age. He is currently employed as an academic.
9.The mother was born in 1977 in Country H and is currently 45 years of age. She immigrated to Australia in 2008. The mother is employed on a full time basis as a public servant.
10.The parties commenced their relationship in 2010 and were married in 2012. The child was born in 2012.
11. The parties divorced in 2015.
12.The father married his current wife, Ms G (“stepmother”) in 2018. Their son, ZZ, was born in 2020.
Not long after separation in 2013, the parties commenced upon this long-running litigation, which initially culminated in a trial before McClelland DCJ, with judgment being given on 26 March 2020. Under those orders, the father had sole parental responsibility for the child, who would live with him and, if the mother met certain conditions, spend five nights per fortnight in her unsupervised care.
The reason for the imposition of conditions on the mother’s time with the child lay in a finding that, unless she was able to obtain assistance to help reduce her conviction that the father was a risk of serious harm to the child, the risk which she posed was unacceptable. The mother did not comply with the conditions, and the subsequent care arrangements for the child thereafter fluctuated, including significant blocks of time when the child was in the mother’s sole care.
The mother’s appeal from the 2020 orders was unsuccessful (Cheadle & Pointer [2020] FamCAFC 277).
Further disputation ensued, including the mother withholding the child from the father in breach of orders and agreements.
The current iteration of those proceedings was commenced by the mother on 10 June 2021, with a second trial being conducted before the primary judge in February and April 2023.
Central to the hearing before the primary judge remained the respective risks which each party and their household posed to the child.
In his 21 July 2023 reasons, the primary judge concluded that the mother remained an unacceptable risk of harm to the child, such that she should live with the father, who would retain sole parental responsibility for her, and her time with the mother should be limited to one professionally supervised visit per month.
It is from those orders that the mother appealed.
THE APPEAL
Generally
At the outset, it is important to recognise that the appeal is from orders made in the exercise of a judicial discretion, such that the principles enunciated in House v The King (1936) 55 CLR 499 at 504–505 are engaged. There, the majority of the 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…
Grounds 1, 2, 2A, 3, 5 and 6 were abandoned at the hearing of the appeal, leaving only Grounds 4, 4A and 7.
Ground 4
This ground provides:
4.That the Court erred by failing to take into consideration material facts regarding the nature of the child’s relationship with the mother and erred in failing to consider the impact on the child of spending limited and supervised time with the mother.
As argued, this ground was a complaint that the primary judge “did not pay sufficient attention to the impact on the child in the reduction of frequency of the time she would have with [the] [m]other”, and “[n]o attention … was devoted to the change of frequency of the child’s time with [the] [m]other, and how that may impact on the child” (mother’s Summary of Argument filed 11 October 2023, paragraphs 39 and 41) (emphasis added). The change in frequency was between the fortnightly time in place at the time of trial, and the monthly time ordered by the primary judge.
Plainly it is therefore a weight challenge. Such challenges are forlorn unless the outcome is plainly unjust or unreasonable (Gronow v Gronow (1979) 144 CLR 513 at 519 per Stephen J; CDJ v VAJ (1998) 197 CLR 172 at 230–231 per Kirby J; Keighley & Keighley [2023] FedCFamC1A 146 at [98]–[104]).
Given that, somewhat curiously counsel for the mother did not claim that the outcome was unreasonable or plainly unjust, and hence how the ground remained viable was not able to be discerned.
In any event, the primary judge did traverse the relevant evidence pertaining to a reduction in the child’s time with the mother at [272] and accepted it at [273]. Although his Honour did not specifically articulate the likely effect on the child of a reduction from fortnightly to monthly time, that is scarcely surprising, as there was no proposal, even in the alternative, by any party that the then current regime for fortnightly time should, under any scenario, continue. Having not argued for it at trial, the mother cannot now construct a different case on appeal (Metwally v Universityof Wollongong (1985) 60 ALR 68 (“Metwally”)).
This ground fails.
Ground 4A
This ground provides:
4A.That the Court in making Orders 4(a) and 5 in terms that it did, in that if was not clear as to the duration of time that the child would have with the Mother, and any such duration was delegated to a non-party to the proceedings, namely [TT Family Centre] or such other commercial supervision agency as agreed between the parties in writing.
Orders 4(a) and 5 were as follows:
4.Unless otherwise agreed by the Parties, the child spend the following time with the Applicant Mother (“mother”):
(a)On the last Sunday of every month for such period of time as is prescribed by the supervision entity referred to in Order 5 or if applicable Order 6(b) in accordance with its practices and protocols; and
…
5. For the purpose of Order 4:
(a)The child’s time with the mother is to be supervised by [TT Family Centre], or such other commercial supervision agency as agreed between the parties in writing;
(b)The costs of such supervision, including report, are to be borne by the mother; and
(c)The parties shall take all necessary steps to comply with any reasonable request or requirement of the supervision entity.
Again, this challenge asserts a case which the mother did not advance at trial (Metwally), namely that her supervised time with the child should have a minimum prescribed duration. Whilst it is true that the duration of the supervised time would, necessarily as a matter of practicality, be determined by the availability of staff and locations of the supervising entity, and therefore its duration was not prescribed, it simply could not be. There was no other option but to express the order in the terms that it was. Such is not a delegation of judicial power (cf. Re David (1997) FLC 92-776), nor is it otherwise erroneous.
Ground 7
This ground provides:
7. That the Court erred in failing to give adequate reasons.
As argued, this was restricted solely to Order 20(a) which was:
20.Pursuant to s 68B of the Act, the Court makes the following injunctions for the personal protection of the child:
(a)The mother be restrained from attending within 100 metres of any school that the child may attend;
At paragraph 53 of her Summary of Argument, the sole argument pressed by the mother was:
53.Order 20 (a) was an injunction restraining the Appellant Mother from attending within 100 metres of any school that the child may attend. It is submitted that the Court did not provide adequate reasons why. Why for example she might be able to attend the child’s school even if under a form of supervision?
In dealing with this challenge, it is pertinent to recall that the mother’s supervised time with the child, unless otherwise agreed, is only on a Sunday (Order 4) which is not a school day.
The obligation to provide reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The reasons advanced by the primary judge for ordering the restraints were as follows:
279.Each parent proposes a range of usual restraints upon the other. I see no reason not to make some orders of this nature. The ICL sought a number of restraints, particularly regarding the mother’s conduct with respect of the child.
280.The ICL argued that the mother has shown that she will not comply with Court orders if she believes the child to be unsafe. They submitted that the proposed restraints are necessary in order to support the child’s ongoing stability and security in the father’s care.
281.The mother argued that the proposed restraints are extreme in nature and not warranted on the facts of the case. I disagree. The mother has demonstrated not only unwillingness, but also an inability to fully understand her obligations, to comply with Court orders she does not like or disagrees with. The evidence leads me to infer a likelihood that the orders made on the basis of these reasons will fall into that category. I consider the restraints necessary.
The reasoning therein exposed, whilst brief, is nonetheless clear and able to be ascertained.
Ground 7 fails.
CONCLUSION
No ground of appeal enjoyed merit, and the appeal was dismissed.
COSTS
As the appeal failed, the ICL sought that the mother pay her costs in the sum of $4,301. The mother did not oppose that order but sought three months to pay. We accordingly made an order in those terms.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Carew. Associate:
Dated: 7 November 2023
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