Kisiel & Kisiel - [2022] FedCFamC1A 218

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Kisiel & Kisiel [2022] FedCFamC1A 218

Appeal from: Kisiel & Kisiel [2022] FedCFamC2F 1326

Appeal number: NAA 195 of 2022

File number: WOC 389 of 2021

Judgment of: AUSTIN J

Date of judgment: 20 December 2022

Catchwords:
FAMILY LAW – APPEAL – Parenting – Risk of harm – Where the father appeals orders restraining him from approaching the mother and the parties’ child and for the child to spend only professionally supervised time with him – Procedural Fairness – Where the primary judge conducted the hearing on an “interim interim” basis – Where the primary judge has not since returned to finalise the interim dispute – Where there can be no procedural fairness by doing what the parties mutually want – Asserted error of law – Where it was unnecessary for the primary judge to address each and every factor prescribed by s 60CC of the Family Law Act 1975 (Cth) when the parties did not do so – Whether the primary judge made the injunctions “without proper basis” – Where there can be no complaint when the father acquiesced to the injunctions – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the father is still able to revive the as yet unfinished interlocutory hearing –Where the evidence would be more appropriately adduced in support of an application to vary the appealed orders below – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.08, 13.39

Cases cited:
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165

Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54

Number of paragraphs: 52

Date of hearing: 12 December 2022

Place: Newcastle (via video link)

Counsel for the Appellant: Ms Tabbernor

Solicitor for the Appellant: Sward Law

Counsel for the Respondent: Mr Havenstein

Solicitor for the Respondent: Rossi Simicic Lawyers

Counsel for the Independent Children's Lawyer: Mr Cook

Solicitor for the Independent Children's Lawyer: Maguire & McInerney Lawyers
ORDERS

NAA 195 of 2022
WOC 389 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR KISIEL

Appellant

AND:
MS KISIEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

AUSTIN J

DATE OF ORDER:

19 DEcember 2022

THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 12 December 2022 is dismissed.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $13,714.70

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…

Grounds of appeal

[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.

Continue reading Kisiel & Kisiel

Details

AGLC: Kisiel & Kisiel [2022] FedCFamC1A 218
Case: [2022] FedCFamC1A 218
Decision Date

CaseChat Overview and Summary

The appeal concerns a parenting dispute between the parties, identified as Kisiel and Kisiel, regarding their child born in 2017. The child has lived primarily with the mother since the parents' separation in 2020, with the father spending considerable time with the child until mid-2022. The dispute escalated in June 2022 when the father refused to return the child to the mother, leading to an application for interim orders. On 4 July 2022, the Federal Circuit and Family Court of Australia made interim orders that the child would live with the mother, with the father directed to return the child by noon on that day. The interim parenting dispute was set for further hearing on 11 August 2022, with an expectation that the orders would be made on an interim-interim basis, pending a final hearing.

The legal issues before the court included whether the father could successfully appeal the interim orders, and if he could adduce further evidence in the appeal process. The court considered the timing and procedural fairness of the appeal, along with the father's attempt to introduce new evidence after the primary hearing. The court also evaluated whether the appeal was the appropriate forum to address the procedural concerns raised by the father, particularly given the primary judge's indication that the interlocutory hearing was incomplete. The father's application to adduce further evidence in the appeal was dismissed on the grounds of lateness, lack of justification, and the unsuitability of the appeal as a forum to complete the original hearing.

The court concluded that the father's appeal was not successful, and the interim orders were affirmed. The father's attempt to adduce further evidence in the appeal was deemed inappropriate and untimely. The court found no procedural unfairness and confirmed that the father could still raise his evidence in the interlocutory hearing before the primary judge or in an application to vary the orders. The final orders affirmed the interim parenting arrangement and rejected the father's appeal, maintaining the child's residence with the mother pending further determination of the parenting dispute.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal is dismissed.Background The child was born in 2017 and is five years of age. The parties separated in 2020, after which time the child lived with the mother and spent substantial time with the father until mid-2022. The regime was voluntary and was not regulated by any interim orders. In June 2022, the father refused to return the child to the mother, prompting a contest over interim orders. On 4 July 2022, interim orders were made for the child to live with the mother and the father was directed to return the child to her by noon that day. No provision was made for the child to spend time with the father, but the parties’ interim parenting dispute was listed for further hearing before the primary judge on 11 August 2022. Due to the mother’s intended reliance upon belatedly served evidence, the hearing proceeded on the understanding that the primary judge would make the orders on what was described as being only an “interim-interim” basis, with the interlocutory dispute having to be finalised at a later time. The primary judge pronounced the orders and delivered ex tempore reasons following the hearing on 11 August 2022.Application in an Appeal On 9 December 2022, one business day before the hearing, the father unsuccessfully tried to file an Application in an Appeal seeking leave to adduce further evidence in the appeal. It was instead filed on 12 December 2022 and he sought to prosecute it at the hearing. The application is dismissed for several reasons. First, under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the application was made late in the appeal (r 13.39(1)), without any satisfactory explanation for its lateness, and the application failed to specify the grounds of appeal to which the further evidence supposedly relates (r 13.39(2)(b)). Ironically, one of the complaints made by the father in the appeal was of the mother’s tardiness in filing affidavit evidence for the hearing before the primary judge. Second, the further evidence sought to be adduced was that contained within the father’s accompanying affidavit affirmed on 9 December 2022, which is intended to be evidence given by him in reply to the affidavit filed by the mother just in advance of the hearing before the primary judge. The Rules would not have allowed the father, without leave, to rely upon a reply affidavit in the interlocutory hearing before the primary judge (rr 5.06 and 5.08(1)). If there was no justification for it then, there could be no justification for it now. Third, for the reasons given below in rejecting the father’s complaint of procedural unfairness in Ground 6, the father is still able to revive the as yet unfinished interlocutory hearing before the primary judge and seek to adduce the evidence in that forum. The appeal is not the place to complete the unfinished original hearing. The evidence would be more appropriately adduced in support of an application to vary the appealed orders (CDJ v VAJ (1998) 197 CLR 172 at [56], [119], [150] and [186.9])Ground 1

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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NAA 195 of 2022 WOC 389 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR KISIEL Appellant
AND:	MS KISIEL Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Kisiel & Kisiel [2022] FedCFamC2F 1326
Appeal number:	NAA 195 of 2022
File number:	WOC 389 of 2021
Judgment of:	AUSTIN J
Date of judgment:	20 December 2022
Catchwords:	FAMILY LAW – APPEAL – Parenting – Risk of harm – Where the father appeals orders restraining him from approaching the mother and the parties’ child and for the child to spend only professionally supervised time with him – Procedural Fairness – Where the primary judge conducted the hearing on an “interim interim” basis – Where the primary judge has not since returned to finalise the interim dispute – Where there can be no procedural fairness by doing what the parties mutually want – Asserted error of law – Where it was unnecessary for the primary judge to address each and every factor prescribed by s 60CC of the Family Law Act 1975 (Cth) when the parties did not do so – Whether the primary judge made the injunctions “without proper basis” – Where there can be no complaint when the father acquiesced to the injunctions – No error identified – Appeal dismissed – Costs ordered in a fixed sum. FAMILY LAW – APPLICATION IN AN APPEAL – Further evidence – Where the father is still able to revive the as yet unfinished interlocutory hearing –Where the evidence would be more appropriately adduced in support of an application to vary the appealed orders below – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60CC, 68B Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.06, 5.08, 13.39
Cases cited:	Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346 Phillips & Hansford (No.2) (2019) FLC 93-917; [2019] FamCAFC 165 Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs:	52
Date of hearing:	12 December 2022
Place:	Newcastle (via video link)
Counsel for the Appellant:	Ms Tabbernor
Solicitor for the Appellant:	Sward Law
Counsel for the Respondent:	Mr Havenstein
Solicitor for the Respondent:	Rossi Simicic Lawyers
Counsel for the Independent Children's Lawyer:	Mr Cook
Solicitor for the Independent Children's Lawyer:	Maguire & McInerney Lawyers

order made by:	AUSTIN J
DATE OF ORDER:	19 DEcember 2022