Lindfield & Romano

Case [2022] FedCFamC1A 81

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Lindfield & Romano [2022] FedCFamC1A 81

Appeal from: Lindfield & Romano [2021] FamCA 158
Appeal number(s): NAA 16 of 2021
NAA 56 of 2021
File number(s): SYC 5523 of 2010
Judgment of: AUSTIN, TREE & WILLIAMS JJ
Date of judgment: 2 June 2022
Catchwords:

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Appeal against final parenting orders – Section 102NA of the Family Law Act 1975 (Cth) – Where the primary judge erred in mistakenly imposing the mandatory conditions to prevent the appellant from personally cross-examining the respondent during the trial when no order had been made – Where notations are not orders – Error of law established – Where the appellant bears the onus of establishing that the error of law was material to the outcome – Where the exercise of discretion by the primary judge would inevitably have produced the same outcome – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Appeal against costs orders of the trial – No appealable error demonstrated – Appeal dismissed – Appellant ordered to pay the costs of the respondent and Independent Children’s Lawyer in a fixed sum.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 68B, 102NA
Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Oberlin & Infeld (2021) FLC 94-017; [2021] FamCAFC 66

Saltern & Mink [2020] FamCAFC 320

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Number of paragraphs: 53
Date of hearing: 4 May 2022
Place: Heard in Sydney, delivered in Melbourne
Counsel for the Appellant: Mr Harper
Solicitor for the Appellant: WND Law
Counsel for the Respondent: Mr Macarounas
Solicitor for the Respondent: Rowlandson & Co
Counsel for the Independent Children's Lawyer: Mr Fermanis
Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

NAA 16 of 2021
NAA 56 of 2021
SYC 5523 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR LINDFIELD

Appellant
AND:

MS ROMANO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, TREE & WILLIAMS JJ

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:

1.The Application to amend the Notice of Appeal filed 3 November 2021 in Appeal NAA 56 of 2021 be refused.

2.Appeals NAA 16 of 2021 and NAA 56 of 2021 be dismissed.

3.The appellant pay the costs of the respondent fixed at $29,040.62 and the costs of the Independent Children’s Lawyer fixed at $5,672 within 90 days.

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…

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Lindfield & Romano [2022] FedCFamC1A 81
Case
[2022] FedCFamC1A 81
Decision Date

CaseChat Overview and Summary

The matter before the court was an appeal against both final parenting orders and costs orders made in the Federal Circuit and Family Court of Australia. The appellant, Mr Lindfield, challenged the final parenting orders made in proceedings under Part VII of the Family Law Act 1975 (Cth), as well as the costs orders. The appeal centred on the contention that the primary judge had erred in imposing mandatory conditions that prevented the appellant from personally cross-examining the respondent during the trial. Additionally, the appellant argued that the costs orders should be reviewed as they were disproportionate.

The legal issues the court needed to address included whether the primary judge had correctly interpreted and applied the provisions of section 102NA of the Family Law Act, which mandates legal representation in cases involving allegations of family violence. The court also needed to determine if the primary judge's imposition of these conditions constituted an error of law that was material to the outcome of the proceedings. Furthermore, the court had to assess whether the costs orders were justified and if the appeal against those orders demonstrated any appealable error.

The court found that while the primary judge had indeed made an error in imposing the mandatory conditions under section 102NA, this error did not materially affect the outcome of the proceedings. The court noted that the exercise of discretion by the primary judge would inevitably have produced the same result, regardless of the error. The court held that the appellant had not demonstrated that the error of law was material to the outcome. Consequently, the appeal against the final parenting orders was dismissed. Regarding the costs appeal, the court found no appealable error in the costs orders, and therefore, this appeal was also dismissed. The appellant was ordered to pay the costs of the respondent and the Independent Children’s Lawyer in a fixed sum.

The court's final orders were that the application to amend the notice of appeal be refused, both appeals be dismissed, and the appellant be required to pay the respondent’s costs fixed at $29,040.62 and the Independent Children’s Lawyer’s costs fixed at $5,672 within 90 days.

Orders

Orders of the court

NAA 16 of 2021

NAA 56 of 2021

SYC 5523 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR LINDFIELD

Appellant

AND:

MS ROMANO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, TREE & WILLIAMS JJ

DATE OF ORDER:

2 JUNE 2022

THE COURT ORDERS THAT:

1. The Application to amend the Notice of Appeal filed 3 November 2021 in Appeal NAA 56 of 2021 be refused.

2. Appeals NAA 16 of 2021 and NAA 56 of 2021 be dismissed.

3. The appellant pay the costs of the respondent fixed at $29,040.62 and the costs of the Independent Children’s Lawyer fixed at $5,672 within 90 days.

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).

Background

Background to the litigation

For the reasons that follow, both the parenting appeal and the costs appeal must be dismissed.BACKGROUND The appellant is aged 55 and is a self-employed tradesperson. The respondent is aged 50 and is an educator. The parties married in 2000 and separated in or around 2009, although they remained living under the one roof for a period of time subsequent to separation. There are three children of the relationship, now aged 20, 18 and 12. Proceedings under Pt VII of the Act commenced by the respondent in September 2010 resulted in final orders permitting the children increasing time with the appellant, although that time ceased in February 2016. In June 2016, the appellant recommenced proceedings under Pt VII of the Act. A significant issue during the second proceeding was the respondent’s contention that the appellant had engaged in coercive and controlling behaviour, including verbal and some physical abuse, which continued subsequent to separation. The appellant denied the allegations of abusive conduct. In January 2020, the family attended upon a Family Consultant for preparation of a family report. On 27 February 2020, the primary judge conducted a procedural hearing during which he released the family report to the parties. As the appellant was self-represented, the primary judge raised with him the provisions of s 102NA of the Act and alerted him to his asserted inability to personally cross-examine the respondent at the final hearing. At the conclusion of the procedural hearing, the primary judge made orders, which included the following notations:IT IS ORDERED THAT…2.UPON NOTING that the requirements of s 102NA (2) of the Family Law Act 1975 will apply to any cross examination occurring in the proceedings on or after 11 September 2019;3. And further noting that the parties have each been advised by the Court:(a)that pursuant to those requirements, neither party may cross-examine the other party personally;(b)that pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the party;(c)as to the availability of Commonwealth Family Violence and Cross-Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and(d)that a copy of these orders will be provided by the court to Legal Aid, which administers the said scheme.…THE COURT NOTES THAT:…D.The Applicant Father will take all necessary steps to make submission for funding for the purposes of representation in accordance with s 102NA of the Act.(As per the original) On 7 September 2020, the primary judge conducted a compliance hearing, when the appellant was again self-represented. Procedural orders made at the conclusion included the following notations:IT IS NOTED THATA.Orders were made for the provisions of s 102NA of the Family Law Act 1975 (Cth) (“the Act”) to apply in relation to representation for the Applicant father against whom allegations of violence are made by the Respondent mother.B.The legal representative allocated to the Applicant father in accordance with the Legal Aid scheme to provide representation for the purposes of s 102NA of the Act filed a Notice of Ceasing to Act on 27 August 2020.C.The Applicant father has been advised he must urgently take necessary steps to obtain representation for the trial which is listed to proceed on 21 September 2020.

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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