FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Laurent & Arany [2024] FedCFamC1A 211
Appeal from: Laurent & Arany (No 2) [2024] FedCFamC2F 941 Appeal number: NAA 158 of 2024 File number: ROC 1112 of 2020 Judgment of: CAMPTON J Date of judgment: 14 November 2024 Catchwords: FAMILY LAW – APPEAL – Where the father appeals from final parenting orders providing for the child to live with the mother and spend time with the father, amongst other orders – Where the father contends that he was denied procedural fairness by way of the Court delivering final judgment prior to considering his Application in a Proceeding filed after judgment was reserved – Where there is no evidence on appeal that the father or his solicitors bought the Application in a Proceeding to the primary judges attention prior to the delivery of the final judgment and the making of final parenting orders notwithstanding opportunities to do so – Consideration of r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in dismissing the Application in a Proceeding after final orders had been made and entered – Where the father makes complaint as to the primary judge erring in fact, failing to take into account relevant considerations, providing inadequate reasons, and as to the orders being so plainly unreasonable and unjust as to amount to a discretionary error – Where such errors are not established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01 and r 13.23
Cases cited: Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713; [1979] FamCA 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kellerman & Kellerman [2024] FedCFamC1A 126
Khatri & Khatri [2024] FedCFamC1A 152
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
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- Laurent & Arany [2024] FedCFamC1A 211
- Case
- [2024] FedCFamC1A 211
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CaseChat Overview and Summary
In the matter of Laurent v Arany, the father, Laurent, appeals from the final parenting orders made by the Family Court of Australia. These orders provide that the child will live with the mother, Arany, and spend time with the father. The father contends that he was denied procedural fairness as the Court delivered the final judgment before considering his Application in a Proceeding filed after the judgment was reserved. The Court finds that there is no evidence that the father or his solicitors brought the Application to the primary judge's attention prior to the delivery of the final judgment, despite multiple opportunities to do so. The Court further considers rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in dismissing the Application in a Proceeding after the final orders had been made and entered.
The father also makes complaints about the primary judge's factual errors, failure to take into account relevant considerations, inadequate reasons, and that the orders are so plainly unreasonable and unjust as to amount to a discretionary error. The Court finds that these errors are not established. The Court concludes that the primary judge's findings are based on the evidence presented and that the reasons provided are sufficient to understand the decision made. The appeal is dismissed, and the final parenting orders remain in place.
The father also makes complaints about the primary judge's factual errors, failure to take into account relevant considerations, inadequate reasons, and that the orders are so plainly unreasonable and unjust as to amount to a discretionary error. The Court finds that these errors are not established. The Court concludes that the primary judge's findings are based on the evidence presented and that the reasons provided are sufficient to understand the decision made. The appeal is dismissed, and the final parenting orders remain in place.
Orders
Orders of the court
NAA 158 of 2024
ROC 1112 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR LAURENT
Appellant
AND:
MS ARANY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
14 NOVEMBER 2024
THE COURT ORDERS THAT:
1. The 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).
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 is dismissed.BACKGROUND The father was born in 1991 and is 33 years old. He and his family are residents of Town B in Region C, an area west of Town D in Central Queensland. The father’s family operates a business there. The father works in that business, living in a house owned by his parents. The father has no intention of living anywhere other than Region C (at [4] and [35]). The mother was born in 1997 and is 27 years old. Her family of origin lives in Town E, approximately 600 kilometres, or seven hours drive, from Region C (at [5]). The mother has no desire to live in Region C (at [35]), wishing to live in rural Queensland, provided she is not compelled to live in the part of Queensland where the father and his family live (at [22]). The mother will not leave Region C if orders are made for the child to live in that area (at [74] and [84]). At the commencement of their relationship the mother and father were living in Region C. They separated on a final basis in mid-2019 when the child was 17 or 18 months old. In December 2019, after engaging in a mediation at a Family Relationship Centre, they implemented a week-about living arrangement for the child. In mid to late 2020 the mother relocated with the child to Town E. On 25 November 2020 the father commenced parenting proceedings, including seeking an order that the child live within 100 kilometres of Region C. On 15 January 2021 the mother made a report to the police alleging that the father had sexually abused the child with a plastic knife. On 20 January 2021 a report was made to the Department of Child Safety. A medical examination was undertaken of the child. It did not find any evidence of sexual abuse. The police investigation was closed at the end of January 2021, determining that there was no evidence to support the allegation. On 29 January 2021 the parents entered interim consent orders providing for the child to spend unsupervised time with the father for one day on Wednesday and one weekend each fortnight. On the same day, 29 January 2021, the mother made a report to the Department of Child Safety repeating the allegation that the father sexually abused the child with a plastic knife. In February 2021 a report was made to the Department of Child Safety as to the child being neglected in the mother’s care. The Department undertook an investigation, finding that the child was not in need of protection. On 27 July 2021 final consent orders were made for the parents to have equal shared parental responsibility for the child, and for the child to live with the mother and for the child to spend time with the father each alternate week from Thursday until Monday until the child was scheduled to commence school. The orders contemplated that the child would in 2023 commence and attend prep school where the mother was then living in Town F, in Region C. From that time the father would spend time with the child on each alternate weekend and for half of the school holidays. An order was made restraining, unless agreed in writing, each parent from relocating (as opposed to relocating the residence of the child) more than 100 kilometres by reasonable road travel from Town B, Queensland.
Evidence
Evidence Before The Court
This theme adopted in the Summary of Argument for the ICL was:18.The trial judge so concluded, in the face of the appellant and the grandmother’s denial (being the only evidence on the point before the court), and in the face of the grandmother’s assertion that “in the last couple of years [the child] only ever spent a couple of nights at [the grandmother’s] place.”. And so apart from the respondent’s perception and the court’s suspicion nothing supports such a conclusion.(Bold emphasis added) (Footnote omitted) The father submitted that the primary judge made assumptions that were “not available” as to the care of the child based on the evidence that the paternal grandmother had taken the child to see the mother’s sister (at paragraph 17). At the hearing of the appeal, he further submitted that the primary judge “relied on her suspicion” that the evidence of the paternal grandmother and the father was “somehow understating the level of care”, and that the content of the reasons “does not get higher than the [primary] judge saying there was a suspicion” as to that subject matter. Implicitly, he submitted that a “suspicion” cannot ground a conclusion as to prospective arrangements as to the care of a child by way of inference. Hence, he contended that the primary finding, as identified in the ground, was “not a finding that was readily available to the trial judge to make”. As a starting point, the Full Court in Khatri & Khatri [2024] FedCFamC1A 152 recorded:52Authorities recognise the advantage enjoyed by a trial judge in making factual findings extends to drawing inferences from those findings. That advantage by a trial judge includes findings of secondary facts which are based on a combination of advantage enjoyed by a trial judge in the impressions he or she gained from witnesses and “other inferences from primary facts” (FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236 at [203], quoting Lee v Lee (2019) 266 CLR 129 at [55]). Next, simply because other findings of fact may also have been open on the evidence before the primary judge does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. The test is whether the finding of fact, or findings of fact material to the exercise of discretion, have been shown to have not been reasonably open (Edwards v Noble (1971) 125 CLR 296 at 304). It is legitimate for the primary judge to ponder and consider hypotheses when assessing prospective parenting arrangements for the child. The reasons illustrate the primary judge’s careful consideration of realistic possibilities. The conclusory finding subject to complaint by way of the ground, contrary to the submissions of the father and the ICL, was not grounded only from the evidence of what the child told the mother. The complaint as to the sole evidence to ground the conclusion is inaccurate. A consideration of all the evidence available to ground the conclusion subject to challenge flowed not only from the advantages of the primary judge in hearing and assessing all of the evidence of the father, the grandmother and what the child had told the mother, but in addition from other subsidiary factual findings made which are not challenged on appeal. An accurate reflection of the other considerations grounding the assessment of the prospective parenting arrangements for the child living in the father’s household include:(a)At [80], that the father works full time from 7.00 am until about 3.00 pm, that he is “absolutely committed” to the family business and its early morning starts, that he was unable to drive the child to school on Monday mornings, and that he had no experience of being a full-time carer of a school-aged child with all of the commitments that come with it; and(b)At [28] and [66], that the paternal grandmother unilaterally took the child to see the mother’s sister, without consulting the father, whilst being aware that the mother and the mother’s sister were estranged, knowing that it would be “offensive” for the mother.
Decision
Reasons for decision
Grounds 3 and 4 do not have merit.Ground 5 – “That the learned trial Judge gave inadequate reasons for her decision.” The primary purpose of providing reasons is to ensure that the parties understand why a decision was made (Bennett and Bennett (1991) FLC 92-191). As to the first limb of this ground, the father advanced in his Summary of Argument:56.There is no explanation about the legislative pathway or the presumption of equal shared parental responsibility or the effect such a finding has on the time the court should order. …80.The [father] submits that because failure to address the relevant law in sufficient detail to identify the legislative pathway, the effect of the presumption of ESPR, and the s60CC factors, and the failure to properly identify and address issues in the evidence the appellate court is unable to discern either expressly or by implication the path by which the result has been reached. The final hearing commencing prior to 6 May 2024. The amendments to Pt VII of the Act, by way of the Family Law Amendment Act 2023 (Cth), did not apply to the proceeding. The primary judge correctly approached the determination of the parenting issues in accordance with the provisions Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as they were prior to 6 May 2024. The first limb of the ground is forlorn. The reasons of the primary judge:(a)At [30], identify the prior orders made as to the father and mother equally sharing parental responsibility and the competing current relief as to parental responsibility.(b)At [35], identify the parameters of the parenting dispute being defined by the respective proposals, such that it was assessed by each of the parties that the distances between Town B (being the place where the father would not move from and would continue to live) and any of Town F, Town D, or Town G (being the mother’s options as to the locations she would live, she not being prepared to live in Town B) were too great for an equal or significant and substantial time regime to be practicable.(c)At [36], record an implicit conclusion that in that circumstance any presumption arising from the equal sharing of responsibility will not apply, and that a consideration of s 60CC factors will determine issues as to parental responsibility and with whom the child should live.(d)At [37], identify that there were two primary considerations (s 60CC(2)) being the benefit to the child of having a meaningful relationship with both of the parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect, or family violence, and that “[m]ost of the evidence in this matter goes to those two big ticket items.” The relevant additional considerations (s 60CC(3)) are then the subject of identification and evaluation (at [38]–[83]). No compliant was made as to the primary judge not considering a relevant s 60CC factor.(e)At [93], after concluding the evaluation of the relevant s 60CC factors, the primary judge turned to the determination as to the allocation of parental responsibility, grounded from the findings as to the child’s best interest.
Ratio Decidendi
Legal Principle Established
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