Leventis & Leventis
[2024] FedCFamC1A 141
•23 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Leventis & Leventis [2024] FedCFamC1A 141
Appeal from: Leventis & Leventis(No 7) [2024] FedCFamC1F 143 Appeal number: NAA 100 of 2024 File number: MLC 7710 of 2018 Judgment of: TREE, WILLIAMS & ALTOBELLI JJ Date of judgment: 23 August 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Family violence – Where the primary judge found that the father had perpetrated family violence as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) – Error of law – Where the primary judge failed to engage in any analysis of whether the father’s alleged conduct coerced or controlled any relevant family member, or caused them to be fearful, such that it met the definition in s 4AB(1) of the Act – Inadequate reasons – Where despite lengthy reasons for judgment the path of reasoning is unclear – Errors identified – Appeal allowed – Re-exercise of discretion – Where the appeal’s dismissal would have enlivened wholly unworkable orders that neither party would seek to enforce – Where the mother does not intend to engage in the litigation any further – Where both parties conceded that it would be appropriate to dismiss their Initiating Applications – Where in the face of no other realistic alternative no parenting orders will be made, the effect of which is the parties will both have parental responsibility. Legislation: Family Law Act 1975 (Cth) ss 4AB, 61C Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 32 Date of hearing: 31 July 2024 Place: Heard in Melbourne, delivered in Cairns Counsel for the Appellant: Mr Nehmy Solicitor for the Appellant: Barry Nilsson Lawyers Counsel for the Respondent: Ms Swann Solicitor for the Respondent: Lander & Rogers ORDERS
NAA 100 of 2024
MLC 7710 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LEVENTIS
Appellant
AND: MS LEVENTIS
Respondent
ORDER MADE BY:
TREE, WILLIAMS & ALTOBELLI JJ
DATE OF ORDER:
23 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 18 July 2024 is dismissed.
2.The Further Amended Notice of Appeal filed 21 June 2024 is allowed.
3.The orders of the Federal Circuit and Family Court of Australia (Division 1) made 28 March 2024 are set aside.
4.The respondent’s Fourth Amended Initiating Application (Family Law) filed 6 November 2023 and the appellant’s Response to Fourth Amended Initiating Application filed 12 February 2024 are dismissed.
5.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in the appeal.
6.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leventis & Leventis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
TREE, WILLIAMS & ALTOBELLI JJ:
INTRODUCTION
On 28 March 2024, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final parenting orders in relation to the parties’ now 15 and 13 year old children (“the children”). Under those orders, Ms Leventis (“the mother”) was given sole parental responsibility for the children, who were to immediately move into her exclusive care, with a six-month moratorium imposed preventing any contact whatsoever between them and Mr Leventis (“the father”). At the end of that six-month period, time and communication would recommence, and 12 months after the orders, culminate in the children spending three nights per fortnight with the father, some school holiday time, and time on special days.
The father appeals against those orders. The mother filed a Submitting Notice, but instructed counsel to appear before us, who reiterated that although not conceded, the appeal was not resisted.
For the reasons which follow, the appeal will be allowed, and in our re-exercise of the primary judge’s discretion, the only orders we make are to dismiss the relevant extant proceedings.
BACKGROUND
The father is 48 years of age and a professional. The mother is 46 years of age and, whilst trained in education, she is presently not in employment, but rather is on a disability pension.
The parties met at university in 1996, married in 2001 and separated in December 2016, at which time the children were 8 and 5 years old respectively.
At least initially, post-separation co-parenting seemed to be unremarkable, and although the mother commenced these proceedings in 2018, nonetheless the children lived week-about between the parties’ households until June 2022. From that time, they have solely lived with the father, and have neither spent time nor communicated with the mother.
THE PRIMARY JUDGE’S REASONS
At the epicentre of the primary judge’s decision is the finding that the father perpetrated family violence as defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) (at [102]–[107]) and is likely to continue to perpetrate such family violence (at [111] and [155]). Thus, the parenting orders made were strongly informed by the need to protect the children from continued exposure to that family violence (at [107]).
Therefore, the family violence informed the order for sole parental responsibility to the mother (at [119], [151] and [162]), the reversal of primary care for the children, and the six-month moratorium of time or communication with the father (at [167]), and perhaps also the culmination of the children’s time with the father as detailed earlier.
APPLICATION IN AN APPEAL
By Application in an Appeal filed 18 July 2024, the father sought to lead evidence of significant events post-judgment in support of Ground 5.2. As the appeal succeeds on a separate ground, we do not need to consider Ground 5.2 to allow the appeal, and the application will be dismissed.
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
…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…
The father’s Further Amended Notice of Appeal ran to some eight grounds, however it is convenient to first deal with Ground 6, as its success renders detailed consideration of the other grounds unnecessary.
Ground 6
Ground 6 provides:
6.In making findings that the father posed an unacceptable risk of emotional and/or psychological harm to the children, including by purportedly alienating the children and /or committing family violence on account of not facilitating time between the children and the mother, the trial judge erred in:
6.1 making findings that were not supported by the evidence;
6.2 application of the relevant legal principles; and
6.3failing to give adequate reasons for the making of the findings and/or the rejection of the father’s evidence.
Section 4AB of the Act provides:
Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
…
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
…
(Emphasis added)
It is tolerably clear that the primary judge was of the view that, so long as the father had acted in a way which met the example in s 4AB(2)(i), then family violence was established. Thus, for example his Honour said:
103.Preventing a family member from keeping connections with his or her family is a species of family violence within the contemplation of s 4AB(2)(i) of the Family Law Act. In my view, the father prevented the mother from seeing the children from June 2022 and thereby prevented her from keeping connections with her family. He therefore committed family violence within the meaning of the Family Law Act. It met one of the examples in s 4AB(2)(i). That example was of “other behaviour” for the purposes of s 4AB(i).
…
107.So far as factual findings were concerned, I find that by the father’s prevention of the mother keeping connections with her family (the children) the father perpetrated family violence, as defined, under s 4AB(2)(i) of the Family Law Act. In consequence of that finding, the primary consideration proscribed by s 60CC(2)(b) is enlivened. In order words, I find that the father committed family violence by his consistent and unremitting prevention of the children (then in his care) from seeing their mother. His explanation for his prevention of the mother’s connections with her children (to pick up the wording or s 4AB(2)(i) of the Family Law Act) was unconvincing. I find that he prevented the mother from keeping connections with her children. It follows, he committed family violence.
(Emphasis added)
No attempt was made by the primary judge to analyse whether the father’s alleged conduct coerced or controlled any relevant family member, or caused them to be fearful, such that it met the definition of family violence in s 4AB(1). The failure to do so is a clear error of law (Carter & Wilson (2023) FLC 94-129 at [17]). Further, notwithstanding that the reasons for judgment extend to 183 paragraphs, we are otherwise unable to ascertain any proper basis or reasoning upon which the finding of family violence was made (Bennett and Bennett (1991) FLC 92-191 at 78,266).
That error is central to nearly every aspect of the primary judge’s decision. Grounds 6.2 and 6.3 are therefore established. We do not need to consider Ground 6.1.
However, we should make it plain that upholding the appeal on this basis does not mean that the father’s keeping the children from having contact with the mother was incapable of meeting the definition of family violence in s 4AB(1). Indeed, if this behaviour was found to have coerced or controlled the mother or caused her to be fearful, then plainly it was family violence. Moreover, it is not difficult to envisage instances where preventing a family member from making or keeping connections with his or her family would coerce or control them, or cause them to be fearful.
The difficulty here, however, is that the primary judge did not undertake the necessary analysis of the father’s conduct to determine whether it satisfied s 4AB(1).
Ground 6 succeeds.
Other grounds
The remaining grounds traverse various other aspects of the primary judge’s decision, and many appear to enjoy merit. For example, it seems quite clear that his Honour’s finding that the mother’s medical condition did not impact on her parenting was contrary to the evidence (Ground 7) and that his Honour failed to properly determine the issue of parental responsibility (Ground 2).
However, given the mother’s lack of defence of the primary judge’s decision, and that none of his Honour’s orders can stand in the face of the success of Ground 6, it is not necessary to consider them further (Boensch v Pascoe (2019) 375 ALR 15 at [8]).
Outcome
The appeal must be allowed.
RE-EXERCISE
In the event the appeal was allowed, the father agreed that, other than setting aside the primary judge’s orders, the Court should only dismiss his response to the mother’s application. For her part, in the event the appeal succeeded, the mother conceded her application should be dismissed, as if the matter were remitted, she would not seek to prosecute her application. The mother’s position was reflective of her acceptance that the children will not spend time with her (much less live with her), but more, they will not even be in the same room as her.
The mother’s attempts to enforce the primary judge’s orders saw the children run away from her house on several occasions. There is thus, at least for the foreseeable future, no prospect of the children living other than with the father, and no order is needed for that to occur.
Likewise, under s 61C of the Act, the effect of there being no orders will be that each party will have parental responsibility for the children – something which the father sought at trial.
We do not pretend that such an outcome is properly described as being in the children’s best interests, but rather there is no other realistic alternative, because to expose the children to further litigation (albeit undefended) to impose what will be a foregone conclusion cannot be said to be in service of their best interests.
COSTS
The appeal has succeeded on a question of law. In those circumstances, we are not of the view that there should be any inter partes order for costs, however each party should have costs certificates for the appeal.
SOME REFLECTION
These proceedings have a most unfortunate history. That is because, for reasons which we cannot discern, the litigation dragged on over many years without being brought to a timely conclusion. Worse, during the last two years, save for the recent abortive attempts at forcing them to live with her, the children have not seen nor communicated with the mother, and by the time of trial were fiercely resistant to doing so. It appears that no real attempt to remedy that lack of contact was made prior to the primary judge’s final parenting orders, something which we have difficulty understanding.
Now that the primary judge’s orders have proved wholly unworkable (despite police involvement and attempts at family therapy), the mother does not intend to engage in the litigation any further, such that she conceded it would be appropriate to dismiss her initiating proceedings, as did the father.
The net effect of all of that is as follows. If the appeal had been dismissed, there would have been left in place wholly unworkable orders which neither party would seek to enforce. However, the appeal has been allowed and the unworkable orders of the primary judge set aside, yet the outcome is that there will be no orders whatsoever pertaining to the children.
Any reader of these reasons will appreciate the absurdity of that situation, namely that after six years of torrid and expensive litigation, the only viable outcome of the re-exercise of the primary judge’s discretion is to make no parenting orders at all, other than dismissing each party’s claims.
It is no exaggeration to say that the courts have failed these parties, and much worse, failed the children.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Williams & Altobelli. Associate:
Dated: 23 August 2024
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