Cheadle & Pointer

Case [2023] FedCFamC1A 191

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 2013

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

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…

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Cheadle & Pointer [2023] FedCFamC1A 191
Case
[2023] FedCFamC1A 191
Decision Date

CaseChat Overview and Summary

In this appeal, Ms. Cheadle, the mother, contested the final parenting orders made by the Family Court, which mandated that she live with her daughter, and that her visitation with the child be limited to one supervised visit per month. The father, Mr. Pointer, and the Independent Children’s Lawyer (ICL) opposed the appeal. The primary judge concluded that Ms. Cheadle posed an unacceptable risk to the child, thereby justifying the imposed conditions. This appeal arose from the extensive litigation between the parties, which began after their separation in 2013 and included prior unsuccessful appeals by the mother.

The central legal issues in this appeal were whether the primary judge erred in concluding that Ms. Cheadle posed an unacceptable risk to the child, and if so, whether this error was substantial enough to warrant a different outcome. Additionally, the court needed to determine if the order for supervised visitation was a legitimate exercise of judicial discretion. The appeal was evaluated under the principles established in House v The King, which require that any error in the exercise of judicial discretion must be substantial to warrant appellate intervention.

The court found that Ms. Cheadle could not present a different case on appeal than she had at first instance, and the primary judge’s reasoning was clear and based on proper consideration of the evidence. The court held that the supervised visitation order did not amount to a delegation of judicial power, as it was necessary to protect the child. Consequently, no ground of appeal had merit, and the appeal was dismissed. As the appeal was unsuccessful, the mother was ordered to pay the ICL's costs of $4,301 within three months.

Orders

Orders of the court

NAA 219 of 2023

SYC 7392 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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 APPEALGenerally 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…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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