Horwitz & Tavares
[2024] FedCFamC1A 20
•5 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Horwitz & Tavares [2024] FedCFamC1A 20
Appeal from: Horwitz & Tavares [2023] FedCFamC2F 1395 Appeal number(s): NAA 286 of 2023 File number(s): ROC 679 of 2023 Judgment of: SCHONELL J Date of judgment: 5 March 2024 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the two young children have been in the care of the respondent since separation – Where the appellant and the respondent, post-separation, lived approximately a nine-hour drive apart from each other –Where the appellant sought orders that if the respondent move to an area closer to him, the children live with him and spend time with the respondent as agreed or, failing agreement, for nine nights a month – Where the appellant sought orders that if the respondent does not move, the children live with him and spend time with the respondent for one weekend a fortnight –Where the primary judge ordered that the children live with the respondent and spend time with the appellant as agreed – Where the appellant contends that the primary judge departed from the proposals of the parties without affording either an opportunity to be heard and thereby was procedurally unfair – Where the appellant contends that the order was made having no regard to the evidence regarding the parties’ capacity to communicate, negotiate, or agree to such time – Where the appellant contends that the primary judge erred in treating his application as an impermissible coercive order – Where the appellant contends that the primary judge made an interim finding on a disputed fact – Where it was found that the appellant proposed no alternative arrangement regarding the circumstance where the children lived primarily with respondent and the respondent did not move – Where the respondent made no proposal for the children to spend time with the appellant – Where the primary judge raised the failure of the parties to place proposals for time and evidence supporting same in her Reasons for Judgment – Where the primary judge concluded that it was not up to her to make up the parenting arrangements – Where it was found that the parties are bound by the way they conducted the hearing – Where the asserted errors of the primary judge were not material to the ultimate determination – Appeal dismissed. Legislation: Family Law Act 1975 (Cth), 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 13.53
Cases cited: AMS v AIF (1999) 199 CLR 160
Commission NSW v Tatmar Pastoral Co. Pty Ltd (1983) 54 ALR 155
Horwitz & Tavares [2023] FedCFamC2F 1395
Marvel & Marvel (2010) 240 FLR 367
Mifsud v Campbell (1991) 21 NSWLR 725
Stead v State Government Insurance Commission (1986) 161 CLR 141
Sun Alliance Insurance Ltd v Massoud [1989] VR 8;
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
U v U (2002) 191 ALR 289
Number of paragraphs: 48 Date of hearing: 22 February 2024 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Mr North Solicitor for the Appellant: Vaj Byrne and Co Lawyers Pty Ltd Counsel for the Respondent: Ms Murphy Solicitor for the Respondent: Creevey Horrell Lawyers ORDERS
NAA 286 of 2023
ROC 679 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HORWITZ
AppellantAND: MS TAVARES
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The Further Amended Notice of Appeal filed 19 January 2024 is dismissed.
2.The Respondent’s application for costs is dismissed, such that there be no order as to costs of the appeal.
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 Horwitz & Taveres has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Further Amended Notice of Appeal filed 19 January 2024, the appellant father ("appellant") appeals the primary judge's orders that the parties' children live with the respondent mother ("respondent") and spend time with the appellant father as agreed in writing. The appeal was opposed by the respondent.
The Further Amended Notice of Appeal contains four grounds. The grounds, however, fall into two discrete categories. Grounds 1 and 2 address error said to be occasioned by the primary judge in relation to the spend time order, with Ground 1 contending a denial of procedural fairness. Grounds 3 and 4 contend error by the primary judge in relation to the live with order.
Consistent with authority, where an appeal asserts a denial of procedural fairness, such ground must be dealt with first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577).
BACKGROUND
The parties commenced cohabitation in or around 2020 and separated in approximately March 2023.
The parties have two children who are aged two and one ("children").
The parties are at issue as to who was the children's primary carer, albeit it seems uncontentious that the respondent did not work, while the appellant was employed in industry and travelled away from the parties' home for work.
The respondent contends that the appellant committed acts of family violence against her, sometimes in the presence of the children. She also raises concerns about the appellant's mental health and the safety of the children in his care. The appellant denies the respondent's allegations of family violence, and similarly raises concerns about the respondent's mental health, her isolation of the children, and her parenting capacity.
During the relationship the parties lived in a regional locality in Queensland, selling their home around the time of their separation. The appellant contends that the parties agreed that, upon sale of the home, they would relocate to somewhere between Town E, where the extended paternal family lived, and Town C, where the extended maternal family lived.
Following separation, the respondent and children initially lived with the maternal grandparents in Town C, Queensland. The appellant lived in Town E, Queensland.
According to the respondent, following separation she was unemployed, had no income, and received no financial support from the appellant. She said that, because of these circumstances, she and the children moved into her parents' home in Town C for about two months. In June 2023, she accepted an offer to live and work on a property, about a one hour's drive away from Town D. Her parents subsequently also moved to town D. The appellant says that Town D is approximately a nine-hour drive from his residence in Town E.
In June 2023, the appellant commenced proceedings seeking final parenting orders for sole parental responsibility and for the children to live with him. He also sought interlocutory orders that the children live with him and spend time with the respondent as agreed or, failing agreement, for nine nights a month. In the alternative, the appellant proposed that if the respondent did not return to the area proximate to where he lived, the children live with him and spend time with the respondent one weekend in each fortnight.
Relevantly, for the purposes of this appeal, the appellant sought no alternative orders in the event his application was not granted.
The respondent sought orders for sole parental responsibility, that the children live with her, and that she be at liberty to further particularise her proposal upon the completion of a psychiatric assessment of the appellant, and the release of a family report.
At the time of hearing, the appellant was working on a rotating roster of about four days on and five days off, and then five days on and four days off. He had not spent time with the children since the parties' separation.
On 26 September 2023, the Court made orders that the children live with the respondent and spend time with the appellant as agreed by the parties in writing. In her Reasons for Judgment, the primary judge observed:
6. This is not a unilateral relocation. Neither parent lives where they lived during the relationship or where the children lived during the relationship. Both parents have made significant changes in their own circumstances post final separation. The father has no power to tell the mother where she will live. The mother is living in [Town D], and the notion that I could make an order which compelled the mother to live somewhere such as [Town E] or [Town C], a place to which she has no current connection, is offensive and not something that the law provides for. So, what I have here is a contest between whether the children should live with the father or live with the mother. There is no option on the table for me to be making an order that the children live with both parents in some kind of equal-time basis or substantial and significant time basis with the parent with whom they are not living.
…
13. Neither parent has placed before me any proposals for how the children would spend time with the father with living with the mother in [Town D]. The father has wholly discounted, it would seem, in his mind the possibility that that might be the case. His orders are proposed on the basis that the mother would either be in [Town E], or the children would be living with him. He otherwise proposed that if the mother did not come back, and the children were living with him, that the children spend time with the mother for half of school holidays, and that is it. Again, we have got a one-year-old and a two-year-old, and half of school holidays is a completely inappropriate style of time for children of that age…The mother does not propose any time. I am not going to make up the kind of time that the children should spend with the father.
…
14. I will be making an order for the children to live with the mother and to spend time with the father as agreed between the parents in writing, and people can later turn their mind to what that might actually look like, but they have not done that for me, and it is not up to me to simply make it up…
…
16. The parties can have a think about what that time might look like, for the children to be spending time with the father…The time needs to be face-to-face, but it will require travel, and the distance is significant...
THE APPEAL
As stated earlier, where an appeal contends as a ground a denial of procedural fairness, such ground must be dealt with first.
GROUND 1
Her Honour's orders departed from the proposals of the parties, without affording either the opportunity to be heard and thereby denied the parties procedural fairness.
The appellant asserts that because the order that the children spend time with the appellant as agreed by the parties in writing was one not sought by either party, or foreshadowed by the primary judge, he was denied procedural fairness.
The appellant proposed to the primary judge that the children live primarily with him and spend time with the respondent. He proposed no alternative arrangement if the children lived primarily with the respondent. Likewise, the respondent made no proposal for time with the appellant.
The primary judge squarely raised in her Reasons for Judgment the dilemma posed by the parties’ failure to provide alternative proposals for time, and evidence supporting how that time could occur, in the event that their primary applications were unsuccessful (see paras 13 and 14 of the Reasons for Judgment dated 26 September 2023).
The parties defined the ambit of litigation in disparate terms and, consequently, are bound by the way they conduct the hearing.
Having conducted the case in the way that he did, the appellant presented the primary judge with little alternative, and cannot now be heard to complain that the primary judge made the order that she did. Procedural fairness relates only to the fairness of the process and not the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152). Not every denial of procedural fairness will result in an appeal being allowed if the determination of the primary judge was inevitable (Stead v State Government Insurance Commission (1986) 161 CLR 141).
There was no denial of procedural fairness in the process conducted by the primary judge. Properly analysed, the appellant’s complaint is with the outcome. The outcome, however, is entirely a consequence of the way the appellant presented his case. The appellant was not deprived of any opportunity, he could have provided an alternate proposal but chose not to. The order made was the inevitable and only consequence of the way in which the appellant conducted the case. The appellant's proper course was an application to vary the order rather than recourse to an appeal.
There is no merit to Ground 1.
GROUND 2
Her Honour made an order for time between the Appellant and the children to be as agreed by the parties with no regard to the evidence regarding the parties' capacity to communicate, negotiate, or agree [to] such time and thereby fell into error by:
1. failing to have regard to all of the evidence; or
2. failing to give adequate reasons in her consideration of the evidence as to why it was appropriate to make an order that there be no time between the children and their father.
Ground 2 asserts error by the primary judge in the making of the order the subject of Ground 1, by failing to have regard to the appellant's evidence as to the inability of the parties to communicate and, alternatively, error by inadequacy of reasons. Ground 2(b) erroneously mis-states the order made by the primary judge. The primary judge did not make a no time order.
That said, while there are two limbs to Ground 2, the appellant's counsel conceded the ground really addresses a complaint about the adequacy of the primary judge’s reasons.
The adequacy of reasons will depend upon the circumstances of the case, but the authorities make it plain that reasons will be inadequate if justice is not seen to be done, or if a party or an appellate court is unable to ascertain the process of reasoning undertaken by the primary judge (see Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at [18]; Mifsud v Campbell (1991) 21 NSWLR 725). However, it is not necessary for a judge exercising a discretion of the type exercised by the primary judge to detail every fact which they found relevant or irrelevant, nor are they required to make an explicit finding on every disputed piece of evidence (Housing Commission NSW v Tatmar Pastoral Co. Pty Ltd (1983) 54 ALR 155).
These were interim proceedings and pursuant to s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) the primary judge was entitled to set out, in short form, her reasons. Here, the primary judge made apparent, in her reasons, that neither party articulated any proposal for how the children would spend time with the appellant if they were living with the respondent. In those circumstances, as the primary judge observed, she could not invent an order to fit a factual situation where the parties lived approximately nine hours apart. It was for the parties to provide the evidence that would permit the fashioning of an order. As Callinan J observed in AMS v AIF (1999) 199 CLR 160 at 251 (cited with approval by Gummow and Callinan JJ in U v U (2002) 191 ALR 289 (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
284.…It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnotes omitted)
Here, the parties did not present the Court with a proposal. Faced with such a dilemma, the primary judge in her Reasons for Judgment identifies the very young age of the children and the distance the parties lived apart, and concludes:
13.…I am not going to make up the kind of time that the children should spend with the father.
14.I will be making an order for the children to live with the mother and to spend time with the father as agreed between the parents in writing, and people can later turn their mind to what that actually might look like, but they have not done that for me and it is not up to me to simply make it up.
In circumstances where the parties failed to provide a proposal as to how to give effect to the time arrangements between the children given the distance that they lived apart, it was unnecessary for the primary judge to deal with the issue of the parties' ability to communicate. There was simply no evidence, nor any proposal, upon which the primary judge could formulate any other order than that which she made. The failing was that of the parties and not of the primary judge. The primary judge's reasons are clear and easily ascertained. There is no merit to the ground that the reasons are inadequate.
The appellant further submits that the primary judge's statement, at paragraph 16 of her Reasons for Judgment, that "time needs to be face-to-face" leads to the inference that the primary judge assumed that the parties would be able to reach agreement. The submission, assuming such inference arises, contends that the failure by the primary judge to address the respondent’s asserted failure to agree to time leads to a conclusion that the primary judge erred by failing to provide reasons for the making of the orders. The difficulty with the submission is that the asserted inference only arises if the words referred to are read in isolation, and one ignores the context that comes from reading all the words that precede them. When the subject words are read in context and in conjunction with the earlier paragraphs, no such inference arises.
There is no merit to Ground 2.
GROUND 3
Her Honour treated the Appellant's application as an impermissible coercive order sought to be imposed on the Respondent, rather than an application as to where the children would live, and thereby fell into error.
The primary judge recorded that the appellant sought orders that:
4....the children live effectively on an equal-time basis with both parents, requiring the mother in that circumstance to live close to him … If the mother does not move to live where he is, then he says the children should live with him.
The appellant submits that this did not accurately reflect the appellant's orders. Such erroneous mischaracterisation of the relief sought by the appellant, so it is submitted, meant the primary judge misdirected herself in construing the relief as coercive and, in so doing, did not properly consider the appellant’s relief.
The respondent concedes the primary judge incorrectly framed the appellant's relief. However, not every such error will give rise to appellate intervention. This was an appeal from a discretionary judgment. The circumstances in which a court will intervene in a discretionary determination are set out by the High Court in House v The King (1936) 55 CLR 499 at 504-505.
In AMS v AIF 199 CLR 160 Justice Kirby observed:
150.An appellate court invited to review the exercise of discretion at first instance will avoid an overtly critical or pernickety, analysis of the primary judge's reasons, given the large amount of judgment, discretion and intuition which is involved. Only if a material error of a kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require there be re-exercise on a re-trial.
Here, the primary judge's error was not material to her ultimate determination. As much is apparent from the primary judge's framing of the respective positions as "what I have here is a contest between whether the children should live with the father or live with the mother" (Reasons for Judgment dated 26 September 2023, para 6).
This statement makes clear the primary judge well knew the competing applications. Her Honour thereafter proceeded to identify that the respondent had been the primary carer of the children, the children’s young age, that the appellant worked a roster split over several weeks, addressed questions of risk, and recorded that, if the children lived with the appellant, his mother and sister would be providing care when he was at work.
It is clear from a reading of the whole reasons that her Honour understood the competing proposals and assessed the evidence in support and against the relief sought by each party. The error was not material, nor was it determinative of the outcome.
There is no merit to Ground 3.
GROUND 4
Her Honour's interim finding that the Respondent's relocation to Town D was not a unilateral relocation was based on contested facts without the requisite circumspection and is thus in error.
The appellant submits that the primary judge, in the context of an interim hearing without any cross-examination, decided disputed facts and in so doing fell into error.
The appellant submitted "a Court hearing an interim matter is entitled to make findings on disputed facts but are required to be circumspect in those findings" (Appellant's Summary of Argument filed January 19, 2024, para 43). The appellant cited in support the Full Court's decision in Marvel & Marvel (2010) 240 FLR 367 (“Marvel”), including:
122. In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence.
However, apposite to this appeal is also what their Honours set out in the next two paragraphs, and their observation that:
124.Notwithstanding the two matters we have identified as being inappropriate findings, we are satisfied that they did not constitute the ratio decidendi of his Honour’s decision or affect the ultimate discretion he exercised. The trial judge did not make findings on contentious issues which would have rendered his decision unsafe, and appealable error on this basis is not established.
As in Marvel, the disputed factual findings of the primary judge here did not constitute the ratio decendi of her Honour’s decision or affect the ultimate discretion she exercised. The primary judge's determination was not based upon whether there was, or was not, a unilateral relocation.
The appellant's submission takes the offending statement out of context. Whether there was, or was not, a unilateral relocation, the primary judge correctly identified the ambit of dispute was "whether the children should live with the father or live with the mother" (Reasons for Judgment dated 26 September 2023, para 6). That was determined by: the history of parenting pre-separation where the respondent had been the children's primary carer; the age of the children; the proposals of the appellant post-separation which saw the children being cared for, on occasions when he worked, by his mother and sister; and the primary judge’s determination that the children were not at risk in the respondent's care. None of which is the subject of any challenge in the appeal.
There is no merit to Ground 4.
CONCLUSION
The appeal will be dismissed.
COSTS
The respondent sought an order for her costs. However, her counsel properly conceded that the respondent had not complied with Rule 13.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and conceded that such failure to comply was fatal to an application for the respondent’s costs.
There will be no order as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 5 March 2024
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