Fletcher & Chapman
[2023] FedCFamC1A 72
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fletcher & Chapman [2023] FedCFamC1A 72
Appeal from: Chapman & Fletcher [2023] FedCFamC1F 4 Appeal number: NAA 25 of 2023 File number: BRC 10325 of 2016 Judgment of: ALDRIDGE, GILL & CAMPTON JJ Date of judgment: 18 May 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother did not file a Summary of Argument – Where the mother sought an adjournment at the hearing – No evidence in support – Where the appellant took no steps to prosecute the appeal – Adjournment refused – Appeal dismissed.
FAMILY LAW – CROSS-APPEAL – PARENTING – Where the foster carer cross-appeals the orders – Consideration of the child’s best interests – Challenges to weight given to evidence – Change in circumstances – Irrelevant considerations – Procedural fairness – No error established – Cross-appeal dismissed.
Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.45
Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA
Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Rice v Miller (1993) FLC 92-415; [1993] FamCA 87
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 59 Date of hearing: 4 May 2023 Place: Brisbane The Appellant: Self-represented litigant The First Respondent: Self-represented litigant The Second Respondent: Self-represented litigant Solicitor for The Independent Children’s Lawyer: Did not participate ORDERS
NAA 25 of 2023
BRC 10325 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS FLETCHER
Appellant
AND: MR CHAPMAN
First Respondent
MS PENNEL
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE, GILL & CAMPTON JJ
DATE OF ORDER:
18 may 2023
THE COURT ORDERED ON 4 MAY 2023 THAT:
1.Leave is granted to the cross appellant / second respondent to rely on the Summary of Argument dated 28 April 2023, with the headings in that document to stand as the grounds of appeal in the cross appeal.
2.The Application in an Appeal filed on 27 April 2023 is otherwise dismissed.
3.Leave is granted to the first respondent to rely on the Summary of Argument dated 2 May 2023 in the cross appeal.
4.The Application in an Appeal filed on 14 April 2023 is dismissed.
5.The appeal is dismissed.
6.Judgment in respect of the cross appeal is reserved.
THE COURT FURTHER ORDERS THAT:
1.The cross-appeal 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fletcher & Chapman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, GILL & CAMPTON JJ:
INTRODUCTION
This is an appeal and cross-appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 11 January 2023.
The proceedings before the primary judge concerned the living arrangements for X (“the child”) who was born in 2015. His mother is the appellant and his father is the first respondent to the appeal. At the time of the trial, the child was living with the second respondent, who is a foster carer. Pursuant to action taken by the Department of Child Safety, Youth & Women, the child lived with the second respondent from November 2015 to September 2016, March 2018 to February 2019 and January 2020 to the date of the orders the subject of appeal.
The orders provided for the mother and father to have equal shared parental responsibility for the child. He was to live with his father, spend each alternate weekend with the mother and spend time with the second respondent for 5.5 hours every fourth weekend.
PROCEDURAL HISTORY
The mother filed a Notice of Appeal on 8 February 2023. It did not contain grounds asserting specific error by the primary judge. Rather, it consisted of a statement as to why she considers the orders should not have been made and why the orders she sought should have been made. It is effectively a restatement of her case before the primary judge.
A Notice of Cross-Appeal was filed on the same day by the second respondent / cross-appellant (herein referred to as “the cross-appellant”). Each of the seven grounds is stated only in very broad and general terms.
An appeal judicial registrar conducted a procedural hearing on 17 February 2023 with all the parties present. The Independent Children’s Lawyer did not appear and has played no part in the appeal.
Unsurprisingly, the appeal judicial registrar required the mother to file an Amended Notice of Appeal in addition to a Summary of Argument. Both were to be filed and served by 10 March 2023. The cross-appellant was to file and serve an Amended Notice of Cross-Appeal and her Summary of Argument on or before 24 March 2023.
The electronic appeal book was prepared by the registry.
The parties were advised on 13 March 2023 that the appeal and the cross-appeal were listed for 4 May 2023.
The mother did not comply with the orders directed to her and on 14 March 2023 the registry wrote to her advising of the default and drawing her attention to s 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), which permits the court to dismiss an appeal for failure to comply with such a direction. The mother was also referred to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) which permits the court to dismiss an appeal for non-compliance. The mother was informed that the Court would consider following such a course at the hearing of the appeal.
The cross-appellant did not comply with the direction to file an Amended Notice of Cross-Appeal or a Summary of Argument. On 3 April 2023, she was sent a letter in similar terms to that sent to the mother.
On 14 April 2023, the father filed an Application in an Appeal seeking the dismissal of the appeal and cross-appeal, and payment of his costs.
The cross-appellant filed an Application in an Appeal on 27 April 2023 seeking the adjournment of the appeal, leave to rely on an Amended Notice of Appeal and leave to rely on a Summary of Argument filed on 15 April 2023. No such document was filed. A copy was provided on 28 April 2023.
There were thus a number of matters before the Court at the hearing of the appeal.
THE APPEAL
It is convenient to deal first with the Notice of Appeal. The mother appeared at the hearing by telephone. She sought an adjournment of the appeal because she had received a grant of legal aid four or five days earlier but had not been able to engage a lawyer. There was no evidence to this effect and she did not say when she first sought the grant of aid. She was unable to explain why she had not sought an adjournment earlier or, at the least, inform the other parties of her application and its progress.
The mother had taken no steps to prosecute the appeal.
As will be explained shortly, the cross-appeal was in a position to proceed. If the mother’s application was granted, the appeal would have to have been adjourned with little certainty or expectation that the mother would be in a position to prosecute it on any adjourned date.
The continuation of the legal proceedings over the child’s living arrangements, which would be caused by adjourning the appeal, was unlikely to be in his best interests.
For these reasons, we refused the adjournment. The mother remained in breach of the appeal judicial registrar’s directions and, accordingly, we dismissed the appeal.
THE CROSS-APPEAL
As to the cross-appeal, a Summary of Argument was provided by the cross-appellant to the Court on 28 April 2023. Whilst the father opposed the cross-appellant being granted an extension of time to rely on that document, most commendably, he prepared a Summary of Argument in response two days before the hearing of the appeal and cross-appeal. Both the father and the cross-appellant agreed that they were in a position to proceed and, as it is preferable, where possible, to deal with the substance of matters, orders were made for the necessary extensions of time.
The cross-appellant also sought to file an Amended Notice of Cross-Appeal. It and the Notice of Cross-Appeal differed from the headings used by the cross-appellant in her Summary of Argument. With her agreement, we did not give leave to file the Amended Notice of Cross-Appeal and instead directed that the headings in the cross-appellant’s Summary of Argument stand as the grounds
This is an appeal from a discretionary decision and the following principles as set out in House v The King (1936) 55 CLR 499 at 504–505 apply:
…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…
Did the primary judge properly consider s 60CC(2)(b) of the Family Law Act 1975 (Cth)?
The cross-appellant submitted that if the child lived with the father, his medical needs would not be met, leading to an unacceptable risk of harm to him.
His Honour said:
44.It is uncontroversial that [the child] was diagnosed with attention deficit hyperactivity disorder in December, 2021. [The father], however, has doubts about that diagnosis. I accept his evidence that his own general practitioner has seen [the child] and told him that in his view [the child] does not have attention deficit hyperactivity disorder.
45.[The child’s] speech is delayed and he needs assistance to improve his speech capacity. There is a report before me that demonstrates that [the child] has significant difficulties with his attention, focus, impulsivity, planning and organisation.
The contention of the Independent Children’s Lawyer and the cross-appellant that the father had neither the capacity or willingness to meet the child’s health care needs was identified by his Honour at [87]–[89], leading to the following conclusion:
90.In the event that [the child] was to live with [the father] I am satisfied that [the child] would have his medical needs met. It might be that the advice received by [the father] from those he chooses to advise on [the child’s] health needs is different to that received in the past, but I do not consider that [the father] would fail to seek advice, or to consider it or act upon it. His evidence was that he has sought advice about [the child’s] health needs. I am in no position on the evidence to determine which advice – that received by [the cross-appellant] or [the father] – is more probative.
Thus contrary to this ground, the matter was considered.
His Honour also noted that no one suggested that the child would be at an unacceptable risk of harm by being exposed to abuse, neglect or family violence in the household of any of the parties (at [61]). That statement was not challenged in the appeal. In final submissions to the primary judge, counsel for the cross-appellant did not suggest that the child would be at a risk in the father’s care, merely that his medical needs would not be met. This led his Honour to find:
99.Effectively, the argument made for both the Independent Children’s Lawyer and [the cross-appellant] is that [the father] is an untested parent to [the child] and given his attitude towards [the child’s] ADHD diagnosis, it would be a risk to place him in [the father’s] care. These arguments are true. But the evidence does not address either the nature of, or the magnitude of the risk. The nature of the risk is not defined by the evidence because the evidence does not answer the question – what will happen if [the child] is placed into [the father’s] care and, for example, he does not attend to treating [the child’s] ADHD.
100.Notwithstanding the ill-defined nature of the risk and the lack of evidence concerning its consequences should it come to pass, I accept that it is a “risk” to place [the child] in the full-time care of [the father] for the reasons identified by the Independent Children’s Lawyer and [the cross-appellant]. But to do otherwise would be to deny [the child] the opportunity to be cared for by one of his parents on a full-time basis.
It follows that the primary judge was not in error in the above finding even if the ground is to be read as being more extensive.
Did the primary judge proceed on a presumption in favour of the father as a biological parent?
The cross-appellant submitted that the primary judge proceeded on a presumption in favour of the father as a biological parent. His Honour did say that the fact of parentage was “both relevant and worthy of careful consideration” (at [106]) but that there “is no presumption that children should be cared for by parents rather than others” (at [105]).
In Maldera & Orbel (2014) FLC 93-602 at [81] the Full Court said:
81.Nor do we cavil with the well settled jurisprudence which establishes that in a parenting case undertaken between a parent and another person interested in the welfare of a child, the fact of parenthood requires careful consideration (Aldridge v Keaton). However, s 60B cannot be used to establish a hierarchy as to outcome in which parents sit at the apex. In our view, it is abundantly clear that the comparative significance for a particular child of the fact of parenthood (which may in an individual case be decisive) is to be considered and weighed along with the other matters identified in s 60CC (and if relevant s 65DAA). But not on the basis that the factors referred to in s 60B can be used in favour of a parent to deliver an outcome inconsistent with the proper application of s 60CC.
In Rice v Miller (1993) 16 Fam LR 970 the Full Court said at 977–978:
We are thus of the view that the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.
The primary judge’s stated approach accords entirely with those authorities.
The cross-appellant submitted that notwithstanding his Honour’s statements to the contrary, the primary judge did, in fact, apply such a presumption because “the overwhelming weight of the evidence in relation to the considerations under Section 60CC of the Act was in favour of [the child] living primarily with the Cross Appellant” (Cross-Appellant’s Summary of Argument dated 28 April 2023, paragraph 13).
That was not how the primary judge saw it.
His Honour found that the child would benefit from a relationship with all three parties and that he had a good relationship with the father and the cross-appellant (at [61] and [67]) who were each committed to his care and had the capacity to do so (at [70]–[72]). The lack of financial support from the father was discounted given his financial circumstances (at [73]). Any change in the child’s circumstances was discussed at [75]–[80], where it was noted that orders for him to live with the father would “carry with it some instability” but that the evidence did not address the effect of the change on relationships which could be both positive and negative. This was because whilst there might be short term difficulties experienced by the child moving from the care of the cross-appellant to that of the father, the aim was for the long term benefit.
None of these findings was challenged by the cross-appellant. The overwhelming weight of these considerations was not in favour of the cross-appellant.
This led to the following conclusion:
106.I do not accept the submissions made by the Independent Children’s Lawyer and [the cross-appellant] that the apparent risk to [the child’s] welfare in [the father’s] full-time care means that he should continue to reside with [the cross-appellant]. Whilst this is what I consider to be a finely balanced case, I consider that [the father’s] proposal carries with it more advantages for [the child] than the advantages that flow from the proposal of either the Independent Children’s Lawyer or [the cross-appellant]. Whilst both can meet [the child’s] needs on my assessment, the balance is tipped in favour of [the father’s] case because he is a parent of [the child], something which is both relevant and worthy of careful consideration (Maldera v Orbel at [81]), at the very least pursuant to s 60CC(3)(m) of the Act.
107.I do not consider that it will be in [the child’s] best interests to live with [the mother] because I do not consider that she has the capacity to meet his needs as I have set out above.
108.I consider that there should be an order that [the child] live with [the father]. I accept that such an order will require [the child] to leave his present school, but I am not satisfied that will not be addressed by [the father] in due course. There is nothing to suggest that he is not committed to doing all that he can for his son and much to suggest that he is so committed. At the very least his persistence with these proceedings is evidence of that commitment to his son.
Contrary to the submissions of the cross-appellant we do not consider that the primary judge did anything other than correctly apply the above principles. His Honour was entitled to take into account and to give weight to the fact of parentage which, in a finely balanced case such as this, could ultimately be the consideration that tipped the scales in favour of the father. That falls well short of the fact of parentage being used in a presumptive manner.
This ground does not succeed.
Did the primary judge err by not giving sufficient weight to the likely effect of any change in circumstances, the extent to which a parent has fulfilled his or her obligations as a parent and the relationship between the child and the cross-appellant?
The cross-appellant’s Summary of Argument raised three challenges to the weight given to particular considerations under s 60CC of the Family Law Act 1975 (Cth). Such challenges face a high bar (Norbis v Norbis (1986) 161 CLR 513; Gronow v Gronow (1979) 144 CLR 513) and the cross-appellant must effectively demonstrate that the outcome is plainly wrong or unreasonable.
As we have already noted, his Honour gave express consideration to these matters and found upon taking all the s 60CC considerations into account, the outcome that was in the best interests of the child remained finely balanced. As we have seen, those considerations did not favour either the father or the cross-appellant.
Seen in this light, the complaint made by the cross-appellant becomes a complaint that the s 60CC considerations as contended for by her were not given decisive weight. Such a complaint is no more than a submission that the primary judge erred by not accepting the cross-appellant’s case and an invitation to substitute our view for his. That is not enough to demonstrate error. Different judges can quite properly achieve different outcomes on the same evidence (CDJ v VAJ (1998) 197 CLR 172 at 218–219). Indeed, in the present case, the primary judge stated that it was a finely balanced matter.
It is the task of the trial judge to evaluate, weigh and determine the parties’ various contentions. It is not an error to favour one party’s case over another unless an error of the kind identified in [22] above. No such error has been identified. We are quite unable to see that the weight given to the various contentions resulted in an outcome that was unreasonable or plainly wrong.
These grounds do not succeed.
Did the primary judge take into account an irrelevant matter?
The cross-appellant submitted that the primary judge erroneously took into account the father’s frustration:
25.… that his son was not living with him, but rather with biological strangers in circumstances where the Department had failed in its attempt to obtain a custody order over [the child] because the relevant [state] Court determined that [the father] was a parent able and willing to care for [the child]. …
His Honour concluded that the frustration was understandable and went “some way towards explaining the apparent inconsistencies in parts of his evidence” (at [25]).
Importantly, his Honour then added the following:
26.But this case is not about what is in [the father’s] best interests or about delivering to him what it is to which he thinks he is entitled. It is about what is in [the child’s] best interests.
This point is not referred to again in the reasons either directly or by necessary inference. There is no basis for doubting the primary judge’s statement that he would not take it into account in determining what orders were in the child’s best interests. Plainly, his Honour did not.
This challenge fails.
Was the cross-appellant accorded procedural fairness?
The final contention asserted a want of procedural fairness because the primary judge did not permit the cross-appellant to rely on an affidavit which was filed and served in breach of an order as to the time it was to be filed and as to its content (the direction permitted an updating affidavit only).
The cross-appellant filed an affidavit on 14 March 2022. The late filed affidavit did not deal only with matters arising after that date. Paragraphs 8–17, 20–21, 30–32, 41–43, 45–46, 61–64 deal with matters occurring from November 2015 to March 2022.
The affidavit also annexed a number of medical, welfare and school reports. There was no subsequent attempt by counsel to tender any of these documents.
The transcript does not bear out the assertion that the cross-appellant’s counsel was unable to ventilate the basis on which leave to rely on the affidavit was sought. Counsel agreed that the affidavit went beyond merely updating material, then added that he had nothing further to say (Transcript 6 July 2022, p.8 lines 6–29). There was no explanation offered as to why these matters were not in the earlier affidavit. No explanation was given as to why the whole affidavit was not filed in accordance with the relevant directions.
In these circumstances, it is impossible to discern error on the part of the primary judge.
The remaining submissions
The remainder of the submissions made by the cross-appellant are simply as to why the primary judge should have made a different order and permitted her to rely on the affidavit. Again, that does not identify error.
The cross-appellant’s Summary of Argument does not identify how the reception of the proposed evidence could have led to a different outcome. If a want of procedural fairness does not lead to a miscarriage of justice, then the appeal will fail (Stead v State Government Insurance Commission (1986) 161 CLR 141).
As the Full Court of the Federal Court of Australia identified in Bahonko v Sterjov (2008) 166 FCR 415, it is for the cross-appellant to identify the errors in the judgment under appeal and to persuade the appeal court that they were made. The Full Court said:
3.Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
We have closely read his Honour’s reasons. There is no reason to suspect that a detailed examination of the evidence would reveal any error. The matters of concern raised by the cross-appellant do not give rise to any conclusion of error.
CONCLUSION
It follows that the cross-appeal will be dismissed.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Campton. Associate:
Dated: 18 May 2023
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