Marchini & Marchini
[2024] FedCFamC1A 47
•4 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Marchini & Marchini [2024] FedCFamC1A 47
Appeal from: Marchini & Marchini [2023] FedCFamC2F 1181 Appeal number: NAA 239 of 2023 File number: BRC 15721 of 2020 Judgment of: CHRISTIE J Date of judgment: 4 April 2024 Catchwords: FAMILY LAW – APPEAL – Final parenting orders – Procedural fairness – Whether a third party whose interests were affected by the outcome was not given notice or the opportunity to participate – Where the third party had notice and gave evidence but was not joined – Whether the primary judge delegating responsibility to the Independent Children’s Lawyer for drafting orders was procedurally unfair – Procedural unfairness not established – Adequacy of reasons – Where the basis upon which the primary judge concludes that the children’s time with the respondent may graduate from supervised to unsupervised is not apparent – Absence of findings that allow an understanding of how the primary judge reached the conclusion that he did concerning risk – Appeal allowed – Remitted for rehearing. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191
Bircher & Bircher [2020] FamCAFC 214
Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577; [2006] HA 55
Isles v Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 44 Date of hearing: 28 March 2024 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Ms Bassano Solicitor for the Appellant: Legal Aid Queensland Counsel for the Respondent: Mr Mould Solicitor for the Respondent: Armfield O’Brien Law Counsel for the Independent Children's Lawyer: Ms Eviston Solicitor for the Independent Children's Lawyer: Parker Family Law ORDERS
NAA 239 of 2023
BRC 15721 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MARCHINI
Appellant
AND: MR MARCHINI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
4 APRIL 2024
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 3, 4, 5, 6, 7, 8 and 17 of the Orders dated 18 July 2023 are set aside.
3.The matter is remitted for rehearing.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Marchini & Marchini has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from a decision of a judge of the Federal Circuit and Family Court of Australia (Division 2) made 18 July 2023. The appellant does not appeal against all the orders but those which focus on the time to be spent between the respondent and the children and the order which requires her to provide her residential address to the respondent.
THE TRIAL
The primary judge heard and determined an application which related to parenting arrangements for five children of the appellant, four of whom it was accepted, at trial, were also children of the respondent.
At the time of the trial before the primary judge, the parties’ two oldest children, boys aged 11 and 9, were not seeing or spending time with the respondent (notwithstanding an order for time). The next two children, girls aged eight and six, were seeing the respondent in a supervised setting and the fifth child, a girl aged three and a half, (whose paternity was in issue) was not spending time with the respondent and had never been introduced to him.
The appellant had re-partnered after separation (but said she was not in a relationship) and her position at trial was that the fifth child was the child of her subsequent partner, Mr B, and lived predominantly with him. They also have another younger child together who the appellant said lived with her.
The primary judge found that the appellant and her partner were actively alienating the children from the respondent.
The primary judge found that the respondent had been controlling of the appellant in the context of family violence and had impaired parenting capacity such as to require that time be initially supervised.
The appeal lies against the orders which the primary judge made for time between the children and the respondent – that is that the time would be initially supervised graduating to unsupervised and would include all four children and the youngest child (should paternity testing determine that the respondent is the father).
The appellant’s written submissions at [7] confirm that the youngest child is the biological child of the appellant.
The respondent seeks that the appeal be dismissed. The Independent Children’s Lawyer (“ICL”) supports the appeal. For the reasons which follow the appeal will be allowed.
THE APPEAL
Ground 4, 5 and 9
The appellant asserts a denial of procedural fairness has been occasioned and accordingly I will address those grounds which raise the procedural fairness complaint first, consistent with authority: Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]. They are Ground 4, 5 and 9.
Ground 4 was expressed as follows:
The learned primary Judge erred in law in that the exercise of discretion result[ed] in an outcome that was plainly wrong or unjust having regard to that procedural fairness was not provided to Mr [B] where Orders were made regarding the child [Z] born […] 2019, who has lived with him on a fulltime basis.
To constitute appellate error it would be necessary to establish that a person whose interests were affected by the outcome was not given notice or the opportunity to participate. This is plainly not the situation here. Mr B was aware of the existence of the proceedings and was subpoenaed to attend Court to give evidence (which he did) by the ICL. The primary judge found at [20] that the appellant had not established that the child Z was living with Mr B (after ambiguously recording at [18] that she was living with Mr B). In these circumstances the ground is ill-conceived. It is premised on a conclusion which was not established at trial.
I accept that the evidence may have been capable of establishing that Mr B was (notwithstanding the finding at [20]) a person with an interest in the care, welfare and development of Z. But that conclusion could only entitle him to standing – it did not make him a necessary party whose absence renders the resulting orders procedurally unfair.
Ground 5 was expressed as follows:
The learned primary Judge gave no, or no appropriate considerations, as to the practical effect of the child [Z] spending time with the father, in circumstances the child lived with [Mr B].
Ground 5 suffers from the same defect as Ground 4.
Ground 9 is expressed as follows:
The learned primary Judge erred in requiring the Independent Children’s Lawyer to formulate the final orders after the reasons for judgment were delivered.
The Full Court recently observed in Aitken & Aitken (2023) FLC 94-142 at [32] and [35] as follows:
32.… In Wilson and Ors v Minister for Aboriginal and Torres Strait Islander Affairs and Anor (1996) 189 CLR 1 at 11, the High Court described the function of Commonwealth judicial power in the following terms:
The function of the federal judicial branch is the quelling of justiciable controversies, whether between citizens (individual or corporate), between citizens and executive government (in civil and criminal matters) and between the various polities in the federation (21). This is discharged by ascertainment of facts, application of legal criteria and the exercise, where appropriate, of judicial discretion (Fencott v Muller (1983) 152 CLR 570 at 608). The result is promulgated in public and implemented by binding orders.
…
35.… delegating responsibility to the parties to conceive the nature and form of the orders required to quell the controversy between them arguably amounted to an abdication of judicial duty. …
(Emphasis in original)
The appellant contends that this is what occurred in this case. However, the circumstances are different in the following material ways:
(a)The ICL outlined a proposal for supervised time graduating to unsupervised time;
(b)The primary judge indicated that he would make orders in those terms;
(c)The primary judge gave the parties time to review the written terms which were prepared by the ICL;
(d)The primary judge gave the parties time to make submissions about the proposed orders; and
(e)The appellant’s lawyer did make submissions about the proposed orders.
It follows that I do not accept the submissions that the appeal should be allowed because of procedural unfairness.
Remaining Grounds
I turn then to consider the remaining grounds. In the submissions on behalf of the appellant, Ground 1, 2, 3 and 6 are addressed together in the Summary of Argument because there is overlap in respect of the subject matter.
Ground 1 is drafted as follows:
The learned primary Judge gave no, or no adequate reasons, either expressly or by implication, from which the path by which his Honour concluded that it was in the child’s best interests to spend unsupervised and extended time with the father can be discerned.
This is a complaint about adequacy of reasons.
In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The appellant contends that the basis upon which the primary judge concludes that the time may become unsupervised is not apparent. I agree.
I accept that “an appellate court…will avoid an overly critical, or pernickety analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: AMS v AIF (1999) 199 CLR 160 at [150], per Kirby J. However, where one party raises a relevant issue which pertains to the safety and wellbeing of the children the subject of the proceedings, then the process of determining the nature of the alleged risk, its magnitude and any steps which might ameliorate the risk should be readily apparent.
The primary judge made a finding at [175] that the orders should be in accordance with the proposal of the ICL.
To the extent that the ICL’s proposal departed from the ICL’s Minute of Order filed on 27 March 2023, this occurred during closing addresses where the ICL outlined the following proposal:
Your Honour, it’s the ICLs respectful submission that the children’s right to have a relationship with the father should be highly considered in this circumstance. The family reporter – report writer provides somewhat of a road map such that the necessity for supervision is such that it – to develop that relationship, to enable the father to – to enable the children’s time with the father to progress to an unsupervised time arrangement, which is why the ICL supports an arrangement building up to a Friday to Monday arrangement such that these parties don’t need to have communication or contact with each other. It would also – the – sorry, the family report writer also provided a road map for the mother to engage in therapeutic counselling, which is very – which – there is no evidence before the court that it has been occurring, and if it has been, it’s in its infancy at this point in time such that the mother needs to address that. As I’ve indicated, the family report writer’s evidence is such that she does have capacity in that regard.
The ICL would also support an introduction of [Z] to the father should the paternity test result return that Mr [B] is indeed the father. There are issues with how that order will be complied with, and a – and it is the ICLs position that the mother should – there is – there should be a coercive order such that the mother does provide those results. In circumstances of the graduated progression, it’s the ICLs position that it’s important to have an initial period of supervision to ensure that the relationship is re-established, to provide consistency and also to adopt a cautious approach. The ICL also seeks a restraint on the mother from permitting Mr [B] from communicating on her behalf to the children’s school regarding their progression or sickness or anything in that regard. The ICL also seeks a restraint on the mother from changing the children’s name and also from changing the children’s schools. Unless I can assist further, those are the submissions of the ICL.
(Emphasis added) (Transcript 18 July 2023, p.189 line 44 to p.190 line 23)
That was a significant departure from the ICL’s Minute of Order. It was said to find its foundation in the evidence of the Court Child Expert. It does not.
The appellant’s position at trial was that the father’s conduct ought to lead the Court to the conclusion that only supervised time was consistent with the identified risk to the children.
This position is understandable in light of the observation of the Court Child Expert at [136]:
The previous Family Report identified the predominant matter being extreme family violence and harsh parenting perpetrated by the father in his relationship with Ms [Marchini] for which the children were deemed to have experienced significant physical and emotional harm, with emerging trauma as a result.
Further the Court Child Expert said at [145]:
The writer remains of the view that Mr [Marchini] present[s] significant risk to the children and that any form of time arrangement the Court considers necessary for any or all of these children should remain supervised at all times.
(Emphasis added)
The same theme is repeated in [154]. While the primary judge was at liberty to reject this opinion, he was obliged to engage with it and, if making orders which departed from its definitive terms, give reasons which would satisfy the reader that the issue had been considered. This did not occur.
The Court Child Expert was cross-examined by the lawyers for both parties and the ICL. The highest the evidence of the Court Child Expert could be taken is that if supervised time were to be exercised consistently and reliably without distress for the children – both parents and the children had therapeutic support and the mother was able to support the extension of time – then, in those very qualified circumstances, unsupervised time could be contemplated.
This was a case which fell to be determined by reference to the two primary considerations. Section 60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”) requires that priority be given to the “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence”. To that end the Court had evidence of alleged violence by the respondent towards the appellant and by the respondent towards the children. Albeit faintly, the primary judge finds that there was an incident of physical violence and a history of control. These are findings that the respondent engaged in family violence.
At [104] the primary judge said:
There is no real issue raised that the father would be a physical risk to the children and there is no real issue that he would set out to control the children as he controlled the mother, because that is a totally different relationship…
Those conclusions sit uncomfortably with the evidence. The mother’s evidence was that the father had used excessive physical discipline with the children including an incident which precipitated separation and involved both the police and Child Safety Queensland. In interview with the Court Child Expert, the parties’ oldest child recounted being smacked hard and his sister being hit “very hard”. The parties’ second oldest child also recalled being smacked and hurt. Both older children indicated a fear about this occurring in the future.
The issue of physical harm having been squarely raised by the evidence, the primary judge was entitled to find that:
(a)The incidents did not occur; or
(b)The incidents occurred but did not pose a future risk; or
(c)The incidents occurred and did pose a future risk; or
(d)The evidence did not allow him to make a finding about this issue.
This process of making findings about relevant contested matters is not apparent in the reasons for judgment. It is difficult in those circumstances to understand how the primary judge reached the conclusion set out at [104] above.
At [156] the primary judge observed:
…because I am satisfied that the father himself does not display those qualities which are measured in the Act by the capacity to parent and having the responsibility to make proper decisions, at least at this stage, it is really a case where everything that can be done should be done to ensure that the children get to see their father in a safe setting, and that is most certainly, initially, in supervision.
It is not plain, given the evidence of the Court Child Expert where in the reasons for judgment the primary judge sets out the analysis which supports the transition from supervised to unsupervised time. Perhaps that is the intention of [187] which reads:
I do not find that there is an unacceptable risk in relation to the children spending time with the father, other than the amount of time which they have not been spending with him, in controlled circumstances as put forward by the Independent Children’s Lawyer.
But something more was required in the circumstances of this case to satisfy the reader of the reasons for judgment that the primary judge had undertaken the predictive exercise the subject of discussion in Isles v Nelissen (2022) FLC 94-092
Having reached the conclusion I have about Ground 1 it is not necessary for me to consider the remaining grounds, save for Ground 10.
Ground 10
Ground 10 is directed to Order 17 and is best characterised as a complaint that the primary judge failed to give reasons for making an order which provided her residential address to the respondent (contrary to the appellant’s submissions at trial). The ground is expressed as:
The learned primary Judge made findings that the father engaged in acts which were controlling and coercive behaviours towards the mother however there is no or no adequate evaluation by the learned primary Judge of the evidence to order the mother to provide the father with her phone number and address.
The appellant sought to restrict the respondent’s access to this information consistently with her position that the appellant had engaged in controlling behaviour after separation. The primary judge accepted this was so. The primary judge engaged with appellant’s counsel about this issue during final addresses.
In Bircher & Bircher [2020] FamCAFC 214 (“Bircher”) the Full Court heard an appeal in which the primary judge at first instance had made a specific order regarding the children communicating with the parties by telephone. On appeal, the appellant asserted error on the basis that neither party sought it and there were insufficient reasons for the order. The Full Court noted that the issue excited little interest at trial as there was little difference between the various proposals and then referred to the extent to which the primary judge took the issue up during final submissions. Although debated in the final submissions, it was not mentioned anywhere in the reasons for judgment. The Full Court said:
57. Nonetheless, while the issue was debated with the parties and the ICL in final submissions, it is not mentioned anywhere in the reasons for judgment. Reasons must provide, among other things, an explanation for findings and the ultimate conclusions reached by the judge. While a judge is not required to deal with every argument and issue that arises in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection (DL v R (2018) 266 CLR 1 at [130] , [131] ). Here, the mother maintained her application and argued for telephone communication thrice each week and the appealed order provided for only once each week, without any explanation at all being exposed by the reasons for judgment. The reservations expressed by the primary judge during the final submissions about the suitability of three telephone calls each week cannot be simply transposed into the reasons, where they do not exist.
(Emphasis added)
The Full Court in Bircher found that the failure to give reasons was an error of law but that such error in that case did not result in a miscarriage of justice.
In this case, where the issue goes to the safety (and sense of safety) of the parent with whom the children live, I am of the view that the order (made in the absence of reasons) constitutes a material error and accordingly would allow the appeal against Order 17.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 4 April 2024
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