FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dorian & Geary [2023] FedCFamC1A 58
Appeal from: Dorian & Geary [2022] FedCFamC2F 1597 Appeal number(s): NAA 281 of 2022 File number(s): TVC 1320 of 2020 Judgment of: CHRISTIE J Date of judgment: 5 May 2023 Catchwords: FAMILY LAW – APPEAL – where the trial judge made final parenting orders on 21 November 2022 – where the appellant asserts that the primary judge failed to accord procedural fairness to the appellant, the product of which was that there was a miscarriage of justice – where the appellant asserts particulars of the primary judge’s conduct amounted to procedural unfairness – where the ground is not made out – where the appellant asserts that the primary judge fell into error in determining the appellant’s time be supervised – where the primary judge had regard to the expert evidence in making that determination as he was entitled to do – where the appellant asserts that the primary judge failed to provide adequate reasons for indefinite supervised time and the primary judge failed to provide any or any adequate reasons why a six month moratorium on the appellant’s time was granted – where the primary judge gave adequate reasons and had regard to the children’s best interests in doing so – where the appellant asserts the primary judge erred in failing to apply ss 102NA and 102NB of the Family Law Act 1975 (Cth) – where those sections are not engaged on the facts – where the appellant has not made her case out – appeal dismissed – appellant to pay the respondent’s costs. Legislation: Family Law Act 1975 (Cth) ss 68, 69ZN, 69ZX 102NA, 102NB, Div 12A, Pt VII.
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 8.13, Sch 3.
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148,
Johnson & Johnson (2000) 201 CLR 488; [2000] HCA 48,
Johnson and Johnson (1997) FLC 92-764; [1997] FamCA 32
Lindfield and Romano (2022) 65 Fam LR 233; [2022] FedCFamC1A 81,
Malloy & Stopford Malloy (No 3) [2020] FamCA 838
Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17,
Re F: Litigants in PersonGuidelines (2001) FLC 93-072; [2001] FamCA 348
Rice & Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570
Number of paragraphs: 113 Date of hearing: 17 April 2023 Place: Sydney Counsel for the Appellant: Mr Pack Solicitor for the Appellant: Cleon Legal & Mediation Services Counsel for the Respondent: Mr Fellows Solicitor for the Respondent: Legalsense NQ Lawyers Counsel for the Independent Children's Lawyer: Mr Baston Solicitor for the Independent Children's Lawyer: Murray & Lyons Solicitors ORDERS
NAA 281 of 2022
TVC 1320 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: DORIAN
Appellant
AND: GEARY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
5 May 2023
THE COURT ORDERS THAT:
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- AGLC
- Dorian & Geary [2023] FedCFamC1A 58
- Case
- [2023] FedCFamC1A 58
- Decision Date
CaseChat Overview and Summary
In the matter of Dorian & Geary, the appellant challenged the decision of the primary judge, asserting procedural unfairness, a finding against the weight of evidence, and misapplication of the law. The primary judge’s orders had resulted in equal shared parental responsibility with the children living in a “week about” arrangement between the parents. The appellant sought sole parental responsibility, a change of residence for the children to herself, and suspension of the respondent’s time. The respondent, on the other hand, sought sole parental responsibility, with the children living with him and spending time with the appellant under supervision. The independent children’s lawyer initially recommended the children remain with the appellant but later changed position, recommending the children live with the respondent.
The court had to decide whether the appellant had demonstrated any procedural unfairness, whether the findings were against the weight of evidence, and whether the primary judge had misapplied the law. The court found that the primary judge did not fall into error in any of the grounds raised by the appellant. The court concluded that section 102NA(1)(c)(iii) of the Act was not satisfied, and therefore, the provisions of section 102NA did not apply, rendering section 102NB inoperative. The court was not persuaded that any error had been demonstrated by the appellant.
The appeal was dismissed by the court, which then turned to the question of costs. The appellant’s counsel acknowledged that costs would likely be awarded against the appellant given the dismissal of the appeal. The respondent had filed a costs schedule seeking $15,236.54 in accordance with Schedule 3 of the Rules. The court ordered costs in the sum set out in the schedule, while the independent children’s lawyer did not seek an order for costs.
The court had to decide whether the appellant had demonstrated any procedural unfairness, whether the findings were against the weight of evidence, and whether the primary judge had misapplied the law. The court found that the primary judge did not fall into error in any of the grounds raised by the appellant. The court concluded that section 102NA(1)(c)(iii) of the Act was not satisfied, and therefore, the provisions of section 102NA did not apply, rendering section 102NB inoperative. The court was not persuaded that any error had been demonstrated by the appellant.
The appeal was dismissed by the court, which then turned to the question of costs. The appellant’s counsel acknowledged that costs would likely be awarded against the appellant given the dismissal of the appeal. The respondent had filed a costs schedule seeking $15,236.54 in accordance with Schedule 3 of the Rules. The court ordered costs in the sum set out in the schedule, while the independent children’s lawyer did not seek an order for costs.
Orders
Orders of the court
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Background
Background to the litigation
The appellant’s primary contention is that the decision of the primary judge was attended by procedural unfairness such that the resulting orders are a miscarriage of justice. Otherwise the appellant argued that the decision was against the weight of evidence and/or unsupported by adequate reasons. Finally, the appellant argued the primary judge had misapplied the law. For the reasons which follow I am not persuaded that the appellant has demonstrated error and the appeal will be dismissed.BACKGROUND The appellant and respondent lived together between November 2009 and April 2015. The two children, the subject of the parenting orders, were born in 2012 and 2014. On 21 September 2017 final orders were made by consent. Those orders provided for equal shared parental responsibility and the children to live with both parents, graduating to a “week about” arrangement in 2020. On 13 September 2019 a “Temporary Protection Order” was made on the application of the appellant. No final order was made and the parties entered into undertakings. On 21 February 2020 the parties entered into a Parenting Plan which had the effect of modifying the final orders to include a clause that prohibited physical discipline of the children. On 24 September 2020 the appellant filed an Initiating Application seeking discharge of the previous final orders, an order for equal shared parental responsibility (except as regards medical decisions) and suspension of the respondent’s time pending a report. On 10 October 2020 the respondent filed his Response to Initiating Application. He did not seek to disrupt the equal time arrangement but sought specific orders relating to the children’s health and education. The appellant filed a Notice of Risk on 24 September 2020 and on 10 October 2020 the respondent did same.THE TRIAL The appellant conducted the trial herself without the assistance of a lawyer. At commencement of the trial the appellant, through her Amended Initiating Application filed 8 August 2022, sought an order for sole parental responsibility and orders that the children live with her and spend time with the respondent according to their wishes. The respondent, through his Amended Response filed 8 August 2022, also sought an order for sole parental responsibility and an order that the children live with him and their time with the appellant be suspended – but gradually return to a week about arrangement. The independent children’s lawyer’s position at the commencement of the trial was that the children should continue to live with the appellant. The primary basis for this position was said to be the likelihood that the child, X, would be resistant to a change of residence. At the conclusion of the trial the independent children’s lawyer (“the ICL”) sought an order that the children live with the respondent and spend supervised time with the appellant. The ICL’s changed position at the conclusion of the trial was reflective of the specific evidence of the therapist as to whether X would tolerate such a change of residence arrangements.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
If s 102NA(1)(c)(iii) of the Act was not satisfied then the provisions of s 102NA were not mandatory and s 102NB had no operation. Consequently, there is no error demonstrated.CONCLUSION As set out above, I am not persuaded that the primary judge fell into error as asserted by the appellant’s grounds of appeal. Consequently, I will dismiss the appeal and now turn to the question of costs. COSTS Counsel for the appellant appropriately acknowledged that his client would have some difficulty in resisting an order for costs in circumstances where the appeal is dismissed. The costs schedule filed by the respondent sought costs in the sum of $15,236.54 calculated in accordance with Schedule 3 of the Rules. I will make an order in accordance with the sum set out in that schedule. The ICL did not seek an order for costs.
Ratio Decidendi
Legal Principle Established
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