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 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Maxfield & Eliot

Details

AGLC: Maxfield & Eliot [2023] FedCFamC1A 160
Case: [2023] FedCFamC1A 160
Decision Date

CaseChat Overview and Summary

The father, in this case, appeals against the decision of the Federal Circuit and Family Court of Australia, which dismissed his application to review parenting orders made by a senior judicial registrar. These orders provided that the mother would have sole parental responsibility, that the children would live with her, and that they would spend time with the father once per month at a contact centre. The appeal raises issues concerning the exercise of judicial discretion in parenting cases, particularly in light of the family's extensive history with child protection and Children’s Court proceedings.

The primary legal issue before the court was whether the primary judge made an error in exercising her judicial discretion when she dismissed the father's application to review the final parenting orders. The father argued that the primary judge failed to adequately consider certain evidence and did not properly weigh the relevant factors. The court had to determine whether the primary judge's decision was unreasonable or plainly unjust, and whether there was a failure to properly exercise the discretion reposed in her by law.

The court found that the primary judge did not make any error in exercising her judicial discretion. The judge carefully considered the evidence and relevant factors, including the history of child protection and Children’s Court involvement, and concluded that the original orders were in the best interests of the children. The court held that the primary judge's decision was reasonable and just, and that there was no basis for the appellate court to substitute its own discretion for that of the primary judge.

Accordingly, the appeal was dismissed, and the original parenting orders remain in effect. The children will continue to live with the mother, and the father will have supervised contact with them once per month at a contact centre.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 APPEALGenerally 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…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 157 of 2023 BRC 9605 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR MAXFIELD Appellant
AND:	MS ELIOT Respondent
DEPARTMENT OF CHILDREN, YOUTH JUSTICE AND MULTICULTURAL AFFAIRS Intervener INDEPENDENT CHILDREN'S LAWYER

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

ORDER MADE BY:	TREE J
DATE OF ORDER:	21 SEPTEMBER 2023