Markusson & Markusson

[2024] FedCFamC1A 196

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Markusson & Markusson [2024] FedCFamC1A 196

Appeal from:

Markusson & Markusson (No 3) [2024] FedCFamC2F 694

Appeal number:

NAA 159 of 2024

File number:

BRC 5457 of 2022

Judgment of:

TREE J

Date of judgment:

25 October 2024

Catchwords:

FAMILY LAW – APPEAL – Parenting – Where the primary judge made orders vesting the respondent mother with sole parental responsibility and providing that the children only spend time with the appellant father in accordance with their wishes – Assertion of incompetent legal counsel – Where notwithstanding the father’s solicitor’s poor forensic decisions, preparation and submissions no different result would have been reached but for those matters – Assertion of discretionary error – Where the evidence which the father contends was overlooked could not have sensibly made any impact – Where the father is otherwise bound by the case he ran at trial – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Cases cited:

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

House v The King (1936) 55 CLR 499; [1936] HCA 40

Maddax & Danner [2016] FamCAFC 176

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25

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

OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281; [2002] FamCA 1155

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Number of paragraphs:

42

Date of hearing:

17 October 2024

Place:

Cairns (via video link)

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Priestley

Solicitor for the Respondent:

Rice More & Gibson Solicitors

Counsel for the Independent Children's Lawyer:

Ms Frizelle

Solicitor for the Independent Children's Lawyer:

TLG Law

ORDERS

NAA 159 of 2024
BRC 5457 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MARKUSSON

Appellant

AND:

MS MARKUSSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	TREE J
DATE OF ORDER:	25 OCTOBER 2024

THE COURT ORDERS THAT:

1.Save that on 17 October 2024 the respondent was permitted to rely upon a costs schedule filed out of time, the respondent’s Application in an Appeal filed 11 October 2024 is dismissed.

2.The appeal is dismissed.

3.The appellant is to pay the respondent’s costs in the sum of $10,000 within 28 days.

4.The Independent Children's Lawyer’s application for costs 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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Markusson & Markusson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

INTRODUCTION

1. Mr Markusson (“the father”) appeals from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 3 June 2024. Pursuant to those orders, Ms Markusson (“the mother”) has sole parental responsibility for the parties’ two children (“the children”) who are to live with her and spend time and communicate with the father only in accordance with their wishes.

2. The mother and Independent Children's Lawyer (“the ICL”) both oppose the appeal. For the short reasons (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)) which follow, the appeal will be dismissed.

   BACKGROUND

3. The father is presently 47 years of age. The mother is presently 41 years of age. Both are in employment.

4. The parties commenced a relationship in 2005 and separated in 2017 or 2018, the precise date being irrelevant for this appeal. The parties’ eldest child, X, now 15, was born in 2009, and the youngest, Y, now 12, was born in 2012.

5. Post separation the children regularly spent time with the father, until in April 2022 the mother relocated to a different state. That, it seems, precipitated the father commencing parenting proceedings. Thereafter various iterations of interim parenting orders prevailed, culminating in orders for supervised time at a contact centre. However, that proved problematic, and Y has not spent any time with the father since February 2023, and X last did so in July 2023.

6. Likewise, although there were interim orders for telephone communication between the children and the father, Y has not spoken to him since April 2023 and X had also stopped doing so by the time of trial (March 2024).

7. The reason for the children not wishing to spend time or communicate with the father was a central issue at trial.

8. For his part, the father contended that the mother had alienated the children from him, and sought that their care change to him, with a three month moratorium on them spending time or communicating with her, after which it would gradually be reintroduced. However, in his written submissions at trial the father contended for reunification counselling instead, a matter I will address shortly.

9. For her part, the mother (supported by the ICL) said that the father was an unacceptable risk of emotional and psychological harm to the children from firstly, family violence perpetrated by him, and secondly, his lack of insight into their emotional needs. She contended that justified orders which would effectively terminate the children’s relationship with the father.

10. In her reasons, the primary judge:

    (a)found that the father had perpetrated family violence, comprising assaults of the mother in February 2018 (detailed at [80]–[86]), in 2017 (detailed at [87]) and in 2016 (detailed at [89]–[90]). Significantly her Honour accepted that the children had been exposed to that violence (at [100]–[109]);

    (b)was not persuaded that the mother had alienated the children from the father (at [184]);

    (c)found that “[t]aking into consideration the father’s extreme lack of insight into the emotional needs of the children and also their views as expressed to [the family report writer] and in the subpoena material referred to above, I have formed the view that the father lacks insight into the emotional needs of both [X] and [Y] and that he poses an unacceptable risk of emotional and psychological harm to them” (at [163]);

    (d)accepted that the mother’s (and hence the ICL’s) proposed orders would mean that the children would not have a relationship with the father (at [164]);

    (e)concluded by accepting the evidence of [the family report writer] that the father’s proposal would force a relationship between him and the children against their wishes (at [166]), the impact of which would be “far too great” and “perhaps fracture what remains of their relationship” such that “a specific order for time or an order for reunification therapy” would not be in the children’s best interests (at [167]).

    THE APPEAL

11. 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…

    Ground 1

12. This ground provides:

    1.The incompetence of trial counsel for the appellant father, led to a miscarriage of justice.

13. An assertion as to the incompetence of counsel is not, of itself, an independent ground of appeal, although an appeal may be allowed if it can be demonstrated that the incompetence of counsel was such that the appellant was not afforded a fair trial or it produced a miscarriage of justice. (see TKWJ v The Queen (2002) 212 CLR 124).

14. The principles relevant to the question of when an appellate court will allow an appeal on the basis of incompetence of a legal practitioner are set out in OP v TP & Anor (Conduct of Counsel) (2002) 30 Fam LR 281 (“OP”) at 298 as follows:

    123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a re-trial, regardless of whether the result is apparently fair.

    124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.

    (Emphasis added)

15. The Full Court in Maddax & Danner [2016] FamCAFC 176 at [69] confirmed that in a parenting case the effect of OP is that an appellant would need to establish that:

    ·counsel was incompetent or the forensic decisions were wrong;

    ·those decisions affected the judgment; and

    ·but for those matters, a different result would have been reached.

16. At paragraph 22 of his Summary of Argument, the father contended that the errors which his solicitor advocate perpetrated in the hearing before the primary judge included:

    (a)       failing to call/arrange witnesses;

    (b)      inadequate preparation of material; and

    (c)       inconsistent submission/evidence of reunification therapy.

    (Father’s Summary of Argument filed 6 September 2024)

17. However, it is apparent from the primary judge’s reasons that there were other problems with the father’s lawyer’s conduct, including his very unwise cross-examination of the mother which elicited information completely contrary to the father’s interests (discussed at [88]) which caused her Honour to intervene to query if “such line of questioning was conducive to the father’s case” (as noted at [90]). Further, the primary judge was troubled that the proposal for reunification counselling only emerged for the first time in the father’s written submissions (at [65]). Other implicit criticisms of the father’s lawyer appear elsewhere in her Honour’s reasons.

18. I am prepared to proceed on the assumption that, at the very least, the solicitor advocate who appeared for the father before the primary judge made poor forensic decisions, both as noted by the primary judge and as the father contends, failed to properly arrange the attendance of three witnesses who had given affidavits, and failed to prepare a proper affidavit of the father’s current partner, as the father alleges. Likewise, I am prepared to accept that there was incompetence attending the reunification therapy option not being explored by the father’s lawyer at trial until written submissions were filed.

19. Further, it is clear that some of those errors had a degree of impact on the primary judge’s judgment – for example she rejected the evidence of the three relevant lay witnesses who were not produced by the father.

20. However, I am far from persuaded that a different result would likely have been reached but for those matters. Particularly:

    (a)the lay witnesses’ evidence was generally consistent with the ultimate acceptance by the primary judge (at [131]) that, up until the mother relocated in 2022, X did have a good relationship with the father;

    (b)the father’s new partner’s evidence could not have impacted upon the key conclusion of the primary judge about the risk which the father posed to the children;

    (c)the absence of any evidence to support reunification therapy was not the reason the primary judge rejected it, but rather it was rejected because any forcing of the children into a relationship with the father was not in their best interests, as it would only traumatise them further (at [166] and [167]);

    (d)the evidence of additional assaults by the father of the mother elicited by the father’s solicitor’s “somewhat impromptu line of questioning” of the mother was in any event, broadly consistent with the recollections of family violence of both children prior to separation (eg at [101], [105] and [108]).

21. It must be borne in mind that key to the primary judge’s orders were her findings as to the risk which the father posed to the children, a risk which the children themselves had vocalised to therapists and the family report writer. That risk was central to the reasons for the orders of the primary judge.

22. Ground 1 is without merit and fails.

    Ground 2

23. This ground provides:

    2.        The learned Judge failed to consider all relevant matters.

24. As expanded upon in the father’s Summary of Argument, this ground related solely to the primary judge’s view expressed at [61] that the evidence of the lay witnesses not called by the father, in any event, “did nothing to support the father’s case that the mother has alienated the children from him.” Only two of the three lay witnesses were relied upon by the father in arguing this ground.

25. Firstly the father points to the affidavit of Mr C dated 6 March 2024, which at paragraph 4 said:

    4.[The mother’s Facebook] post said, “Anyone else getting to exnarc to jump through hoops to see their kids? I have him on supervised visits. Cruel I know, but I feel it’s a fair trade for him being unfaithful in our marriage Lawyers think it’s a good idea. Once a narcissist always a narcissist.”

    (Affidavit of Mr C filed 6 March 2024)(As per the original)

26. However the primary judge did in fact dealt with this alleged Facebook post at [116] as follows:

    116As mentioned earlier in these reasons, the father strongly denies all allegations that he perpetrated family and domestic violence and/or that the children were ever exposed to same. He submits that the mother’s case that she relocated as a result of family and domestic violence should not be accepted by the Court rather, she did so to assist her application to remain in New South Wales with the children permanently. The father relies on a Facebook post annexed to his reply affidavit filed 25 February 2024 which he alleged was made by the mother on a page called “Life after abusive relationships”. The post reads as follows (errors in the original):

    Anyone else getting the exnarc to jump through hoops to see their kids?I have him on supervised visits. Cruel I know, but I feel it’s a fair trade for him being unfaithful in our marriage. Lawyers think it’s a good idea. Once a narcissist always a narcissist.

    When the mother was asked questions about this post, she accepted that she was a member of the Facebook group however, denied ever making the post. In circumstances where I have no independent evidence to satisfy me that the post was made by the mother, I am unable to make a finding in this regard. Moreover, even if I were to find that the mother did make this post, little weight would be attributed to this as it does not prove that she has alienated the children from the father, as the father has submitted.

    (Emphasis added)

27. The last sentence of that paragraph makes the father’s challenge in this respect unsustainable, as such a finding was well open to the primary judge, and weight given to evidence is quintessentially a matter for the primary judge.

28. Secondly, the father referred to the affidavit of Ms B filed 2 September 2022. It is unnecessary to recite her evidence in detail; suffice to say that the deponent transported X to school for about two and a half months in 2022 before the mother relocated, and during her time driving him, he spoke warmly and lovingly of the father, but said nothing in that vein about the mother.

29. Again the father contends that this supports his case of alienation. However as I have noted, the primary judge accepted that, until relocation, X did enjoy spending time with the father. Significantly, the primary judge relied extensively upon X’s own statements, about why things thereafter changed, including:

    131[The family report writer] goes on to state that from her observations, [Y] has always been closer to the mother and that she has always felt “second place” to [X] in her father’s eyes. As for [X], [the family report writer] found his feelings to be more complex in the sense that he undoubtedly had a close and loving relationship with the father however, [the family report writer] was of the view that he feared becoming overwhelmed and manipulated by the father.

    …

    133In terms of [X] feelings towards his father, exhibit 3 contains notes from a telehealth consultation with [X] and [Dr D] dated [...] July 2023. These notes record (errors in the original):

    Anxiety : mainly around seeing father ;worries about him coming ad getting him and his sister, worries about having to go and live with him. This can keep him awake at night and make him “paranoid”

    DSH: yes, hitting self at the back of the head out of frustration

    No SI

    134When [X] moved to [City E] with the mother and [Y], he started to attend upon [Mr F], a psychologist at [a local clinic]. [Mr F’s] notes dated 13 September 2022, which now forms exhibit 5, states that:

    -[X] noted having a couple of days of feeling sad and angry Sunday/Monday of Father’s. This was due to having to facetime his dad and his dad saying that he’ll see them soon and then “explain what’s really going on”. [X] said he couldn’t understand why his dad would be lying/denying his aggressive behaviour when [X] saw it, and this made him angry and sad. The next day the family took off as “a mental health day” and spent it relaxing together.

    Furthermore, exhibit 6 which contains [Mr F’s] notes from a consultation with [X] on [...] November 2022 records that (errors in the original):

    -[X] had a phone call with his father following last session, and his father breached rules talking negatively about mum/grandma and saying that everyone is lying to him. As a result [X] hung up and then sent a voicemail the following Friday stating he didn’t ant to call because of the previous week. His father sent an apology message. Brought attention to setting boundaries and the voicemail including reason for not wanting to talk. [X] will try again this Friday to see if his father’s behaviour changes

    Putting to one side the fact that it seems [X] was at this point, aware of one or more court orders, the escalation of his anxiety in relation to communication with his father is apparent.

    The final entry of [Mr F’s] notes that I intend to set out below forms exhibit 7 and is dated 9 May 2023:

    [X] reported that his father was abusive on the phone recently, swearing and yelling at him that he is brainwashed and should speak to him more. [X] hung up on him and has refused to speak since. His father sent messages about more things he has bought him, and [X] replied reiterating he doesn’t want gifts.

    135Prior to the move to [City E], [X] spoke to [the family report writer] about the time arrangements with the father. He recalls feeling confused at the time and not knowing what was going on.  When the children spent time with the father at his [Town G] unit in 2018, he eventually figured out what was going on and started to feel angry towards [Ms H]. He told [the family report writer] that he could hear the father and [Ms H] having sex in their room at night and he withheld this information from the mother as he knew it would upset her and that he was not supposed to know those types of things at his age. [X] stated that he did not like [Ms H] and that she was weird. [X] views in relation to the time he spent with the father at the former matrimonial home prior to moving to [City E], particularly in relation to his exposure to family and domestic violence, is dealt with earlier in these reasons.

    …

    138It is clear that there has been a deterioration in [X’s] view towards the father since the first family report. Evidence of this deterioration is best encapsulated in the updated family report. When [the family report writer] told [X] that she needed to see him with the father later in the day, she described [X] becoming:

    …notably anxious and clearly resistant to the thought of it. He agreed to do so however.

    [The family report writer] went on to opine that when it came time to take the children to see the father:

    [X] was in a state, pacing the room. His inner struggle was abundantly clear; part of him wanted to do the ‘right thing’ and yet part of him was overwhelmed by the thought of it.

    [The family report writer] goes on to state that:

    At the sound of [the father’s] voice, [X] collapsed emotionally. He stopped dead in his tracks seemingly momentarily frozen. He then turned and took a couple of steps back to a small alcove area.

    After giving [X] some time to compose himself, [the family report writer] recognised that:

    …he had passed the point of mastering his anxiety. I abandoned the observation. I advised [the mother] to take them home.

    (Footnotes omitted) (Emphasis added)

1. It needs scarcely be said that given X’s own stated experiences, evidence of Ms B of her conversations when driving him over two and a half months in 2022, could not have sensibly made any impact on the issue of alienation.

2. Ground 2 fails.

   Ground 3

3. This ground provides:

   3.The primary judge erred by failing to consider, or failing to give adequate consideration to:

   a.Whether any condition would sufficiently ameliorate the risk as identified by her Honour; and

   b.Whether any other order was available to enable the children to have the benefit of a meaningful relationship with their Father.

4. In his Summary of Argument, by reference to Bielen & Kozma (2022) FLC 94-123, the father contends:

   69.The primary judge made the finding that the Father was an unacceptable risk to the Children.

   70.It does not appear in the reasons for the decision that the primary judge then considered how that risk might be ameliorated.

   71.      For example, the primary judge did not consider:

   (a)children spending supervised time with their Father; and

   (b)therapy for the Father to develop his insight into the children’s psychological and emotional needs.

   72.It is submitted that the primary judge was required to consider how the unacceptable risk may be ameliorated in any way and HH did not.

   73.In the circumstances, the primary judge has erred in failing to consider whether any condition would have sufficiently ameliorated the risk and/or whether there was any order that would have enabled the children to have the benefit of a meaningful relationship with their Father.

   (Father’s Summary of Argument filed 6 September 2024)

5. However, this contention is simply wrong. Firstly, it must be remembered that until his written submissions, the father advanced only a case of a reversal of primary care; in those written submissions he also embraced reunification therapy. He did not contend for any other orders, and is bound by the conduct of his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).

6. Secondly, supervised time had been tried in the past and failed. In any event, no party sought it, and hence her Honour had no evidence as to what any such regime might look like, from which to even begin to craft any orders. But more fundamentally there is what the primary judge said at [166]–[167]:

   166As identified by [the family report writer], there is a significant risk associated with forcing a relationship between the children and the father in circumstances where they have made their views quite clear. At paragraph seventy-eight (78) of the updated family report, [the family report writer] states that:

   [X] is almost 15 and [Y] is 11 ½ years old. They are both of ages where their wishes need to be taken into account in decision-making. Even more than this however, I am certain that they would refuse to go and that such a scenario would traumatise them further.

   167The impact of forcing a relationship is far too great and the orders proposed by the father would perhaps fracture what remains of their relationship. Given the maturity of both [X] and [Y], I have attached significant weight to their views. I do not believe that making a specific order for time or an order for reunification therapy would be in the children's best interest.

   (Emphasis added)

7. Requiring a resumption of supervised time would be forcing a relationship between the father and the children against the children’s wishes.

8. As to requiring the father to undertake therapy, firstly there is no power to so order, except as a condition of an order made within power (Oberlin & Infeld (2021) FLC 94-017 at [51]–[52]) and secondly, the utility of requiring the father to undertake therapy – by whom, when, for how long, with what goal, at whose expense, untouched by any evidence – against his will, and when no one proposed it, all speak against any obligation on the primary judge to even begin to consider it as a condition of an order for time or communication.

9. Ground 3 fails.

   OUTCOME

10. No ground of appeal enjoys merit, and the appeal will be dismissed.

    COSTS

11. In the event that the appeal failed, the mother sought that the father pay her costs ultimately in the sum of $10,000 and the ICL’s final position was that she did not want to be heard against a costs order in the sum of $6,000. The father opposed any costs order, but if made, not the quantum.

12. The appeal has failed. Whilst the father claims to be impecunious, as regards the mother, that is not a bar to a costs order (Northern Territory v Sangare (2019) 265 CLR 164), however it would be as against the ICL if I was persuaded the father would suffer financial hardship in consequence (Family Law Act 1975 (Cth) s 117(4)(b)). Although the evidence as to that is light on, I am so satisfied.

13. The father is to pay the mother’s costs of $10,000 within 28 days.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       25 October 2024