Maxfield & Eliot
[2023] FedCFamC1A 160
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Maxfield & Eliot [2023] FedCFamC1A 160
Appeal from: Maxfield & Eliot [2023] FedCFamC2F 742 Appeal number(s): NAA 157 of 2023 File number(s): BRC 9605 of 2021 Judgment of: TREE J Date of judgment: 21 September 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from interim parenting orders – Where reasons for judgment given in short form as the appeal raises no question of general principle – Where ex tempore reasons should not be picked over – Where the outcome is not patently unjust or unreasonable – Where no ground of appeal succeeds – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 69ZL
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited: House v the King (1936) 55 CLR 499; [1936] HCA 40
Maviglia v Maviglia [1999] NSWCA 188
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Number of paragraphs: 26 Date of hearing: 19 September 2023 Place: Cairns (via video link) The Appellant: Self-represented litigant The Respondent: Self-represented litigant Solicitor for the Intervener: Did not participate Counsel for the Independent Children's Lawyer: Ms Lyons Solicitor for the Independent Children's Lawyer: Forest Glen Lawyers ORDERS
NAA 157 of 2023
BRC 9605 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MAXFIELD
Appellant
AND: MS ELIOT
Respondent
DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS
Intervener
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
21 SEPTEMBER 2023
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).
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 the pseudonym Maxfield & Eliot has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Mr Maxfield (“the father”) appeals from interim parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 16 May 2023. Amongst other things, those orders provided for the three children born to the parties’ relationship, to live with Ms Eliot (“the mother”) and to spend supervised time with the father at a contact centre. They also directed the preparation of a family report, psychiatric assessments of the parents and their attendance at a post-separation parenting course, and further restrained the mother from leaving the children unsupervised in her partner’s care and required her to provide further details of that person.
The mother and the Independent Children’s Lawyer (“ICL”) both oppose the appeal. For the reasons which follow, the appeal will be dismissed. Given that it raises no question of general principle, these reasons are in short form (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
BACKGROUND
The father is presently 43 years of age and the mother 37. The three children of their relationship, are presently aged four, five and six. Final separation occurred in 2021, thereby concluding a relationship of about six years.
The family has a long history of involvement with child protection and Children’s Court proceedings including, it seems, in relation to other children of both the father and the mother from earlier relationships. These current parenting proceedings commenced in 2021 upon application by the father.
On 19 December 2022, a senior judicial registrar made final parenting orders following an undefended hearing resulting from the father’s failure to attend a court event. The orders provided for the mother to have sole parental responsibility, for the children to live with her and to spend time with the father once per month at a contact centre. Those orders were to come into effect upon the expiration of the Child Protection Order on 22 January 2023.
Thereafter the father sought to review the orders of the senior judicial registrar, which application was listed before the primary judge for hearing on 16 May 2023. Both parents, the ICL and the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) participated in the hearing but, given the father’s attendance, it proceeded as an interim hearing only. The primary judge thereafter delivered ex tempore reasons and made orders as summarised earlier in these reasons. Her Honour also excused the Department from further participating in the proceedings.
THE APPEAL
Generally
The Amended Notice of Appeal contains four grounds, although they were argued collectively in the father’s Summary of Argument.
At the outset, it is important to recognise that the appeal is from orders made in the exercise of a judicial discretion, such that the principles enunciated in House v the King (1936) 55 CLR 499 at 504–505 are engaged. 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…
Further, as I have already noted, the reasons for judgment of the primary judge were given ex tempore. It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and that “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked” (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
Finally, as the primary judge herself specifically explained, s 69ZL of the Family Law Act 1975 (Cth) permitted her Honour to give short form reasons in relation to interim parenting orders.
Ground 1
Ground 1 of the father’s appeal contends as follows:
1.[F]ailing to take a material filed in consideration into account.
There has been a large number of documents filed, 1 most recently being a Notice of Risk filed by [the father] on 7th and 9th of May 2023, which contains Relevant Safety concerning information that involves a incident reported to Police, which involves the Father, the Mother and her new partner [Mr C].
(As per the original)
This ground may be swiftly disposed of, since it is plain that, contrary to what it claims, the primary judge did explicitly have regard to the Notices of Risk filed by the father, as follows:
8.The Father has recently filed an updated Notice of Child Abuse, Family Violence or Risk in which he alleges that there is a risk to the children associated with a new partner of the Mother, who the Father says has a history of having been incarcerated for serious crimes, [...]. Beyond the bare assertion in the Notice filed by the Father, there is no evidence before the Court providing any detail in relation to the Mother’s partner or his history. The Mother does not dispute that he has a serious criminal history but indicates that he has got his life together and bettered himself, having undertaken many courses, and does not pose a risk to the children. The Department of Children, Youth Justice and Multicultural Affairs (‘the Department’) has provided a response to the Notice of Child Abuse, Family Violence or Risk filed by the Father, which indicates that no investigation and assessment of the allegations raised in the notice will be undertaken as the information provided did not meet the departmental threshold of significant risk for intervention and no further action will be taken.
(Emphasis added)
Clearly therefore, this ground is misconceived and fails.
Ground 2
Ground 2 asserts:
2.[R]eaching a decision which is unreasonable or plainly unjust.
[The primary judge] has overlooked the importance of Safety Risks/Concerns, considering the information filed and discussed on the day of the hearing relating to [the mother’s] narcissistic Behavioural Issues, [the mother’s] New Partner [Mr C], who is identified as Repeat Serious Violent Offender, to which [the primary judge] had relevant Media information regarding 1 of [Mr C] serious violent Offence that was committed with [...] days of Parole remaining. Has overlooked the fact that [the father] has completed a large number of Parenting Course, $.5 Years of Supervised Contact by [Suburb D] Contact Centre for BRC[…]/2013 from 2014-2018, plus Supervised Contact with Dept of Child Services to which no concerns been identified, which the ICL is well aware of yet is also deliberately withholding relevant information for Correct Fair Judgement can be made.
(As per the original)
This ground is the nub of the father’s complaint. Particularly he says:
·The mother’s new partner is an unacceptable risk of physical harm to the children;
·Requiring the mother to be present when the new partner is with the children is an insufficient protection of the children, which only a complete prohibition of the partner spending time with the children could achieve;
·The father presents no risk of harm to the children, and hence his time with them need not be supervised, particularly given that a contact centre environment does not facilitate a meaningful relationship with the children;
·The result is therefore unreasonable and plainly unjust, as it is beyond the range of reasonable disagreement.
These arguments were all well understood by the primary judge (at [10], [14] and [16]). Her Honour explained her reasons for rejecting them, and the basis for her orders, as follows:
5Both parties have a history of having had children removed from their care by child protective services, and both parties make serious allegations of risk, including risk from family violence. In particular, the Mother alleges violence on the part of the Father in the form of physical and emotional abuse, controlling conduct, threats, including threats to kill, intimidation, anger management issues, a serious assault of [the oldest child]. She also points to the Father’s serious criminal history, which includes a history of incarceration.
6The Father says that the Mother’s allegations are untrue and that she is undermining his relationship with the children. He also alleges that the children are at risk of being exposed and subjected to violence in the care of the Mother. Police and child protection records suggest that there are potential risks in both households, and reveal that those organisations hold particular concerns in relation to the Father.
…
21I am required by section 60CA of the Family Law Act 1975 (Cth) (‘the Act’) to have regard to the children’s best interests as the paramount consideration. I am guided in my determination by the objects and principles in section 60B of the Act. It is well established that at an interim hearing where the evidence is untested findings of fact cannot be made, and the process of inquiry is limited; however, as emphasised by the Full Court in a number of authorities, the fact that the evidence has not been tested does not mean that it can be ignored, and the likely impact on the children of each available course of action, if the evidence is ultimately accepted, must be taken into account.
22This is especially true in relation to evidence of risk from family violence. Even where a determinative finding cannot be made in relation to allegations of violence at the interim stage sufficient weight must be given to allegations of violence, and an interim assessment must be made of the likelihood of violence and the severity of its likely impact. Where risk is alleged in interim parenting proceedings a conservative approach is warranted that is likely to avoid harm to children. The Court will not make an order for a child to spend time with a parent if that would expose the child to an unacceptable risk of harm. The task I must undertake is to have regard to any uncontested facts in the state of the evidence before the Court and balance any risks apparent on the evidence in determining the arrangements that will best meet the children’s interests pending a property [sic] hearing.
…
26In determining the children’s best interests I am to have regard to the factors in section 60CC of the Act, though as the Full Court held in Banks & Banks, it is not necessary at an interim hearing to expressly consider each and every factor. As such, I will limit my consideration to those I consider to be the most important in the circumstances of this particular case.
27There are two primary considerations set out in section 60CC(2). Firstly, I must consider the benefit to the children of having a meaningful relationship with both of their parents. That is the factor that is relied upon heavily by the Father. Secondly, I am to consider the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. That is the factor that is relied upon by the Mother and the Independent Children’s Lawyer.
28Subsection (2A) of section 60CC provides that when a court is applying the considerations set out in subsection (2) it must give greater weight to the consideration set out in paragraph (2)(b). In other words, the Court must give more weight to the need to protect the child from harm than to the benefit to the child of a meaningful relationship with each parent.
29In the circumstances of the present case, where there are extremely serious allegations of risk and family violence, there is reason for considerable caution. I have regard to the additional factors set out in section 60CC(3) of the Act but consider the need to protect the children from harm to be of paramount importance in assessing their best interests at this interim stage where there is limited evidence before the Court and such evidence as there is remains untested. As such, I am not satisfied that it is in the children’s best interests at this stage for the time they spend with the Father to progress to unsupervised time.
30In light of the allegations made by the Mother, nothing that I am not in a position to make findings or to assess which of the evidence is accurate, there also appears to be some cause for concern about supervision being undertaken by the paternal grandmother. As such, I will accede to the application of the Independent Children’s Lawyer and the Mother that the Father spend time with the children in a supervised contact centre.
(Emphasis added) (footnotes omitted)
Her Honour’s reasoning therein exposed is orthodox, rational and cogent. The outcome is not of itself suggestive of any error, nor is it patently unjust or unreasonable.
This ground fails.
Ground 3
This ground broadly states:
3.[M]istaking the facts.
[The primary judge] ignored and mistaken many important relevant facts filed – Notice of Risk which contains a recent incident reported to QPS on 4th May 2023, which relates to [the mother] and her new Partner (who is still on parole [...]) [Mr C] decided to try chase [the father] though the streets of [City E] CBD after [the father] had left the [City E] Magistrates Court.
(As per the original)
This ground is a repetition of an aspect of Ground 1, and fails for similar reasons, as her Honour was plainly well aware of the father’s contentions, and made no factual error in dealing with them.
Ground 4
The last ground contends:
4.[A]llowing extraneous or irrelevant considerations to influence the judgment.
[The primary judge] made and allowed extraneous or irrelevant consideration to influence her judgment with the help of ICL [...], who deliberately refuses to inform the Judge of the correct information relating to Depts involvement, Correct Details and information relating to [the father’s] time with the children throughout 2021 and 2022, the fact [the mother] concerning actions to spitefully and narcissistic-ally deliberately created unfounded allegations of Child abuse August 2022, yet No information has been subpoenaed before by ICL, [the mother] refuses to file her Police statement for the incident she reported and made up, due to it being a perfect example of PERJURY. ICL and [the mother] have teamed up together to control the outcome of the matter to only benefit the mother and not actually the children which is what Family Law is meant to be about.
(As per the original)
The ground does not identify the irrelevant considerations which allegedly materially influenced the judgment, but rather appears to be a complaint that the primary judge did not accept the father’s argument, and hence reject the mother’s and the ICL’s arguments. It was perfectly open to the primary judge to do as she did, and the risk assessment which she undertook was unexceptional.
The complaint of misconduct by the ICL, even if correct (which it does not appear to be) does not speak to error by the primary judge.
This ground fails.
OUTCOME
No ground of appeal succeeds and hence the appeal must be dismissed.
COSTS
In the event the appeal failed, neither the mother nor the ICL sought any order for costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 21 September 2023
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