FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fiedler & Vitale [2025] FedCFamC1A 7
Appeal from: Fiedler & Vitale (No 2) [2024] FedCFamC1F 584 Appeal number(s): NAA 242 of 2024 File number(s): NCC 983 of 2018 Judgment of: RIETHMULLER, KARI & CHRISTIE JJ Date of judgment: 5 February 2025 Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the father appeals final parenting orders – Where the father asserts a lack of procedural fairness – Where the primary judge was not bound by the parties’ proposals – Where the father asserts a lack of reasons – Where the reasons give careful consideration of the evidence – Where the primary judge conducted an assessment of the risk of harm that each parent presented – Where there are no challenges to the findings made by the primary judge – All grounds fail – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 65DAAA Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Epping & Merl [2015] FamCAFC 81
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Malpass & Mayson (2000) FLC 93-061; [2000] FamCA 1253
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Oberlin& Infeld (2021) FLC 94-017; [2021] FamCAFC 66
Sun Alliance Insurance Ltd v Massoud [1989] VR 8; (1991) FLC 91-191
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 66 Date of hearing: 11 December 2024 Place: Sydney Counsel for the Appellant: Mr Harper Solicitor for the Appellant: Lindeman Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: McNeilly Lawyers Counsel for the Independent Children’s Lawyer: Ms Ingenito Solicitor for the Independent Children’s Lawyer: Stevens Family Law & Mediation ORDERS
NAA 242 of 2024
NCC 983 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FIEDLER
Appellant
AND: MS VITALE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RIETHMULLER, KARI & CHRISTIE JJ
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Appeal NAA 242 of 2024 be 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,…
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CaseChat Overview and Summary
In the matter of Fiedler & Vitale, the father, Mr. Fiedler, appeals the final parenting orders made by the Federal Circuit and Family Court of Australia. The central dispute involves the parenting arrangements for the child born from a brief relationship between the parties, who have since separated. The child is currently eight years old and has lived with the father since early 2022 due to various incidents of risk and harm. The mother had initially sought to cease the child's contact with the father upon learning of an apprehended violence order against the father, citing safety concerns. The father argues that the primary judge was procedurally unfair, did not consider the parties' proposals, failed to provide adequate reasons, and misapplied the evidence. The court must decide whether the father's assertions hold merit and if the primary judge's orders should be upheld or altered.
The key legal issues before the court include whether the primary judge was procedurally fair in declining to adopt the parties' proposals for parenting arrangements and whether the judge provided sufficient reasons for his decision. Additionally, the court examines whether the primary judge appropriately assessed the risk of harm posed by each parent and whether his findings were supported by the evidence. The father challenges the primary judge's conclusions about his risk to the child and the adequacy of the reasons provided.
The appellate court found that the primary judge was not constrained by the parties' proposals, a correct application of the principles established in U v U. The judge's comments made it clear that he was open to considering orders beyond those proposed by the parties, including the possibility of no contact between the father and the child. The reasons provided by the primary judge were found to carefully consider the evidence and address the primary judge's concerns about the risk of harm posed by the father. The court noted that there were no challenges to the findings made by the primary judge, and the judge's reasons were thorough and reflective of the evidence presented. As such, all grounds of appeal were dismissed, and the primary judge's orders were upheld.
The court dismissed the father's appeal and confirmed the final parenting orders made by the primary judge. The child will continue to live primarily with the mother, with the father having supervised contact under specific conditions. The court found no procedural unfairness or inadequate reasoning in the primary judge's decision, and the findings regarding the risk of harm were supported by the evidence. The appeal was thus dismissed, and the original orders remained in place.
The key legal issues before the court include whether the primary judge was procedurally fair in declining to adopt the parties' proposals for parenting arrangements and whether the judge provided sufficient reasons for his decision. Additionally, the court examines whether the primary judge appropriately assessed the risk of harm posed by each parent and whether his findings were supported by the evidence. The father challenges the primary judge's conclusions about his risk to the child and the adequacy of the reasons provided.
The appellate court found that the primary judge was not constrained by the parties' proposals, a correct application of the principles established in U v U. The judge's comments made it clear that he was open to considering orders beyond those proposed by the parties, including the possibility of no contact between the father and the child. The reasons provided by the primary judge were found to carefully consider the evidence and address the primary judge's concerns about the risk of harm posed by the father. The court noted that there were no challenges to the findings made by the primary judge, and the judge's reasons were thorough and reflective of the evidence presented. As such, all grounds of appeal were dismissed, and the primary judge's orders were upheld.
The court dismissed the father's appeal and confirmed the final parenting orders made by the primary judge. The child will continue to live primarily with the mother, with the father having supervised contact under specific conditions. The court found no procedural unfairness or inadequate reasoning in the primary judge's decision, and the findings regarding the risk of harm were supported by the evidence. The appeal was thus dismissed, and the original orders remained in place.
Orders
Orders of the court
NAA 242 of 2024
NCC 983 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR FIEDLER
Appellant
AND:
MS VITALE
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
RIETHMULLER, KARI & CHRISTIE JJ
DATE OF ORDER:
5 FEBRUARY 2025
THE COURT ORDERS THAT:
1. Appeal NAA 242 of 2024 be 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 that follow the appeal shall be dismissed.BACKGROUND The parties to the proceedings are the child’s parents. At the time of trial, the mother was 39 years of age and the father was 46 years of age. The child was born in July 2016 and was eight years old at the time of trial. The mother has three other children who live with her and are the child’s half-siblings. The child’s two older half-siblings (aged 12 and 10 at the time of trial) each have significant behavioural issues and high needs as a result of each having a diagnosis of Autism Spectrum Disorder. The father has the care of a child who is his second cousin (aged 11 at the time of trial). He too has significant behavioural issues and needs. A feature of the behaviours of the child’s two older maternal half-siblings and that of the father’s cousin, is that they have each been physically aggressive towards the child. At the commencement of the trial the father was in a relationship with Ms D. By the conclusion of the trial, that relationship had broken down. The primary judge was told this was because of the “unhealthy nature of their relationship” (at [72]). The circumstances of the child prior to the commencement of the proceedings included:(a)The child was born as a result of a brief three-month relationship between the parties, with the parties separating before the child’s birth. (b)The father did not meet the child until the child was three months old.(c)In December 2016 the parties attended mediation and reached agreement about the father spending time with the child.(d)By March 2018 the parties’ agreement had broken down and after four months of no time, the father commenced proceedings.(e)Final orders were made by consent in the earlier proceedings on 26 February 2021. Of significance those orders provided for the child to live with the mother and spend alternate weekends and half school holidays with the father. (f)The mother ceased the child’s time with the father on 19 November 2021 when she became aware of the existence of an AVO between the father and his partner, Ms D.(g)The father next saw the child on 25 January 2022 when the mother asked the father to collect the child from her care as there had been an incident at the home of the maternal grandmother where she and the child had been living together with the maternal uncle. Findings were made that this incident concerned the maternal uncle (who suffers from a “significant intellectual disability”), attempting to “strangle” the child.(h)The child essentially lived with the father since this time.(i)The mother was admitted to a mental health facility between 29 January 2022 and 31 January 2022.(j)On 2 March 2022 the mother attended the child’s school and removed him.(k)On 3 March 2022 the father collected the child from school and did not send him to school again until 28 March 2022, he said out of fear that the child would be at risk of harm as the mother had resumed living with the maternal uncle.
Evidence
Evidence Before The Court
In refusing to make the orders proposed by the parties without hearing oral evidence, the primary judge commented (Transcript 5 July 2024, p. 4 lines 5-8):I’ve seen that. Look, I’ve read the material in detail and there’s no possible way I can approve that without a trial. On the evidence that has been filed, which I have read with great care, there’s a serious trialable [sic] case about whether the father is an unacceptable risk… (Emphasis added) We consider that this comment coupled with the primary judge’s refusal to make the orders promoted by each of the parents and the ICL, signalled to the parties from the commencement of the trial two things:(a)Firstly, the primary judge did not consider himself constrained by the parties’ proposals (a correct application of the principles in U v U (2002) 211 CLR 238); and (b)Secondly, the primary judge delineated the ambit of the dispute to include at one end of the spectrum the orders proposed by the parties which would have seen the child remain living with the father, and at the opposite end of the spectrum, orders that addressed the primary judge’s apprehension that the father was an unacceptable risk of harm to the child. Foreseeably such orders would have included orders that provided no time spending between the father and the child. These opening comments were reinforced by the primary judge’s comments to the ICL during the ICL’s closing submissions; made at a point when the primary judge understood that the ICL and the mother were promoting orders that would provide for a change of primary care to the mother and time spending between the father and the child (Exhibit MFI18) (Transcript 16 August 2024, p. 471 line 46 to p.472 line 3):… I mean, there’s two different issues. Anyway – indeed, effectively, you’re asking me to accept the father’s case against the mother and the mother’s case against the father, and that’s certainly on the cards. But given what you’ve just said, what about the risks, then, of the child – I mean, on one view, it’s a no time case with the father, but you’ve allowed some time. (Emphasis added) We consider these comments by the primary judge made it explicit to the parties that, having by that stage heard all of the evidence in the final hearing, he continued to actively consider orders different to those proposed by the mother and the ICL, including orders for no time spending between the father and the child. Importantly, these comments of the primary judge sequentially occurred at a time prior to either the father’s or the mother’s counsel addressing the Court with closing submissions. In Allesch v Maunz (2000) 203 CLR 172, Kirby J made the following comments when discussing procedural fairness:35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.…38…it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require. 39.Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.(Footnotes omitted) (Emphasis added)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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