FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final parenting orders – Where the primary judge made orders for the children to live with the mother and she have sole parental responsibility and for the father to spend only professionally supervised time with them – Where the father suffered from mental health difficulties – Whether there was unacceptable risk of direct or indirect psychological harm to the children – Where the primary judge found the father presents a psychological risk to the children – Whether the primary judge gave adequate reasons – Whether the primary judge failed to have regard to or placed insufficient weight on certain evidence – Whether the primary judge gave excessive weight to certain evidence – Whether the primary judge’s decision was manifestly wrong – Appeal dismissed.
FAMILY LAW – APPEAL – PROPERTY – Where the father appeals property settlement orders providing for a 55/45 per cent adjustment in favour of the mother – Whether the primary judge failed to give adequate reasons – Where the father contended that his contributions should have been assessed holistically – Where the primary judge did precisely that – Where the father’s complaint that the primary judge failed to have regard to or placed insufficient weight on certain evidence is devoid of merit – Where the father’s complaint that the primary judge erred in law is rejected – Appeal dismissed.
FAMILY LAW – COSTS – Where the father’s appeal from final parenting and property orders was wholly unsuccessful – Where the mother seeks her costs of the appeal calculated in accordance with the scale prescribed by Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Scale costs particularised by successful respondent only on a solicitor/client basis – Where order for costs is sought, costs should be particularised on a party/party basis at scale and on any other basis on which they may be sought – Order for costs made in accordance with scale in an amount fixed by the Full Court approximating party/party costs.
FAMILY LAW – APPEAL – Where the grounds of appeal are numerous, prolix, repetitive, confused and confusing – Where the grounds of appeal are not properly addressed or advanced in the Summary of Argument – Appeal dismissed.
Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA 60CC, 68B, 75, 79, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3, rr 12.17, 13.23, 13.53
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021, updated 28 November 2022 para 5.65
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Keighley & Keighley [2023] FedCFamC1A 146
Case
[2023] FedCFamC1A 146
Decision Date
CaseChat Overview and Summary
The appeal before the court involved the father, Mr Keighley, challenging final parenting and property settlement orders made in the Federal Circuit and Family Court of Australia. The parents were married in 2008 and separated in 2016, leaving two children aged nearly 11 and 6 at the time of the trial. The court was tasked with determining the legal issues surrounding the parenting arrangements and property settlement between the parties, as well as the costs associated with the appeal.
The primary issues before the court were whether the primary judge provided adequate reasons for the parenting and property orders, whether the judge gave proper weight to certain evidence, and whether the judge's decision was manifestly wrong. Additionally, the court needed to consider the costs associated with the appeal.
The court found that the primary judge's reasons were clear and comprehensive, and that the judge had properly considered and evaluated the relevant evidence and factors. The court held that the father's complaints regarding the primary judge's reasons and the asserted inadequacy thereof were without merit. The court also found that the primary judge's assessment of the weight to be given to certain evidence did not warrant reversal, as there was no error of law or mistake of fact present. As a result, the appeal was dismissed.
The court further ordered that the appellant pay the respondent's costs of and incidental to the appeal, fixed in the sum of $25,000. The form of the order is subject to the entry in the Court's records.
Orders
Orders of the court
NAA 38 of 2023
SYC 6003 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR KEIGHLEY
Appellant
AND:
MS KEIGHLEY
Respondent
ORDER MADE BY:
AUSTIN, KARI, STRUM JJ
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of $25,000.
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
For the reasons which follow, the appeal will be dismissed.BACKGROUND The parties were married in 2008 and separated in 2016. There are two children of the marriage aged nearly 11 and 6 at the commencement of the trial. Pursuant to interim parenting orders made in May 2019 (‘the May 2019 interim orders’), the children lived with the mother and were to spend supervised time with the father in three weekends out of four, for up to four hours at a time. The trial proceeded over 13 days between June and November 2022. The last of written final submissions were received in late December 2022. Reasons for judgment (“reasons”) were delivered and final orders (“orders”) were made on 8 February 2023. The orders provided, in summary, for the mother to have sole parental responsibility for the children and for them to live with her; for the children to spend supervised time with the father, for an initial period of six months, for three hours each alternate Saturday and, thereafter, for a period of six hours on the first Sunday of each calendar month; and to effect a property settlement between the parties of 55 per cent to the mother and 45 per cent to the father of their net assets, including superannuation. By reasons of the grounds of appeal, upon which we comment below, which include complaints that the primary judge failed to give (adequate) reasons and failed to (adequately) consider or give weight to various matters, it is unfortunately necessary to set out her Honour’s findings in some details, in order to consider these grounds.PARENTING The primary judge noted that this was not a case about credit; each of the parties saw the facts in the case through the “lens of their own experiences and vulnerabilities and in the case of the father, through serious and often debilitating mental health challenges” (at [25]). Her Honour identified (at [38]) the issues which arose on the cases of each of the parents as being: what was the nature of the children’s relationship with the father; whether time between the children and him posed a risk to them; if so, whether the risk could be ameliorated; what was the capacity of the parents to communicate; and what was the effect, if any, of the father’s actions on the mother’s functioning? In relation to the father, the single expert psychiatrist noted, inter alia, “quite good” interactions between the children and him. However, they were affected by his obsessional traits and the expert expressed concern regarding the father’s failure to perceive the observed “warmth, spontaneity and intimacy” in his relationship with the elder child. This demonstrated the difficulty experienced by him in responding in a proportionate manner to issues as they arose in a parenting context (at [45]–[46]). The expert opined the children’s relationships with their father to be positive and reasonably stable but not very deep, impacted by the (limited) amount of time they had spent with him, the supervision of such time and his personality style (at [47]–[48]).
Evidence
Evidence Before The Court
Contrary to the father’s complaints, it is abundantly clear from the primary judge’s reasons for judgment, which we have relevantly summarised above, how her Honour’s decision was arrived at. In all the circumstances, it is clear that her Honour considered and evaluated the relevant evidence and took into account all relevant factors. The father’s complaints regarding the primary judge’s reasons, or the asserted inadequacy thereof, are without merit.(b) Weight, including failure to consider or adequately consider evidence Many of the father’s appeal grounds assert, in effect, that the primary judge failed to consider (adequately) or to give “proper, genuine and realistic consideration” to some matters and that her Honour gave undue weight to various other matters. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case. Similarly, in Fox v Percy (2003) 214 CLR 118 at [41], Gleeson CJ, Gummow and Kirby JJ said:… No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another. (Footnotes omitted) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said: … It is not the duty of the judge to decide every matter which is raised in argument....Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear... As to weight, in Gronow at 519–520, Stephen J said:The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. …