Michelakos & Alesi
[2023] FedCFamC1A 236
•22 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Michelakos & Alesi [2023] FedCFamC1A 236
Appeal from: Alesi & Michelakos [2023] FedCFamC2F 899 Appeal number(s): NAA 195 of 2023 File number(s): BRC 2675 of 2021 Judgment of: RIETHMULLER J Date of judgment: 22 December 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Whether the trial judge erred in the exercise of discretion – Whether the trial judge failed to give adequate weight where appropriate – Where the appellant is seeking more time with the child – Dispute over holiday time allocation –Where the child is quite young – Appeal allowed in part – Re-exercise of discretion – Orders varied. Legislation: Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9 Cases cited: Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 33 Date of last submissions: 21 December 2023 Date of hearing: 14 December 2023 Place: Parramatta Counsel for the Appellant: Ms Simone Fraser Solicitor for the Appellant: Beck Legal Group Counsel for the Respondent: Mr Sydney Williams, KC Solicitor for the Respondent: Hartley Family Law Counsel for the Independent Children's Lawyer: Dr Mark Sayers Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor ORDERS
NAA 195 of 2023
BRC 2675 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MICHELAKOS
Appellant
AND: MS ALESI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
22 DECEMBER 2023
THE COURT ORDERS THAT:
1.Appeal NAA 195 of 2023 is allowed.
2.The orders of 27 June 2023 be varied by:
(a)setting aside Orders 9(b) and 9(c) and replacing them with the following:
“(b)in 2024 as follows:
A.for each of the April, June/July, and September school holiday periods, one five (5) night block in each school holiday period;
B.in the December/January school holiday period, three (3) periods of five (5) nights, one of which is to include the period referred to in Order 13(a)(ii) from 10.00am on 23 December until 10.00am on 27 December;
(c)in 2025 as follows:
(ii)for each of the April, June/July, and September school holiday periods, for one six (6) night block in each school holiday period; and
(iii)in December/January school holiday period, three (3) periods of six (6) nights, one of which is to include the period pursuant to Order 13(a)(iii) from 10.00am on 27 December until 10.00am on 2 January;”
(b)adding the following words to Order 10:
“AND FURTHER, any block period nominated by the Father must be at least seven (7) days apart after the last day the Father has previously spent time with the child.”
3.The appellant be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
4.That the respondent be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
5.That the Independent Children’s Lawyer be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer.
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 Michelakos & Alesi pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
This appeal is brought by the father against parenting orders made on 27 June 2023 which provided for the child of the parties (X, born 2019) to live with the mother and spend time with the father.
The mother, who is 37 years of age, and the father, who is 36 years of age, were in a brief relationship lasting between 17 months and two and a half years. They separated 13 months after X was born and X remained living with the mother, her primary carer. In February 2021, the father declined to return X to the mother (on the basis that X was ill), resulting in orders made in March 2021 for the father to return X to the mother’s care.
At the time of the trial, X was living with the mother and spending two nights per fortnight with the father, in accordance with interim orders that were made on 23 November 2021. During the course of the hearing the significant issue was whether the mother should be able to relocate with the child from NSW to Queensland. At the end of the hearing, the father agreed to orders permitting the mother to relocate X’s residence. The issues for the trial judge then narrowed to the orders for parental responsibility and the contact arrangements for the child with respect to the father (if substantially shared care was not ordered). At trial, the father and the Independent Children’s Lawyer were seeking that the child spend time with the father increasing progressively to six nights per fortnight by 1 January 2024. The father was seeking that the child spend one half of each school holiday period with each parent much sooner than that determined by the trial judge.
The trial judge made orders for equal shared parental responsibility. Orders for the father to spend time with the child were made in alternative forms, depending upon whether or not the father was residing near to the child (within 25 kilometres). The trial judge made orders for fortnightly time between the father and the child for two nights (Friday and Saturday) each fortnight in the event the father was living more than 25 kilometres from the child and for four nights (Thursday to Monday) each fortnight if the father was living within 25 kilometres.
The trial judge also made orders for contact during the periods defined by the gazetted school holidays, providing for the father to have four-night blocks during each school holiday period in 2023, five-night blocks in each period in 2024, six-night blocks in each period in 2025, and thereafter to share the school holiday periods. In the December/January period, orders were made for the child to spend time with the father on a second occasion, coinciding with Christmas day in even numbered years and from the 27th of December in odd numbered years, for the same length of time as the other school holiday block periods.
Orders were also made for electronic communication, time with X on special days, and other child related matters, which are not in dispute on the appeal.
THE GROUNDS OF APPEAL
The father filed an Amended Notice of Appeal on 6 October 2023, setting out three grounds of appeal. As Grounds 2 and 3 both address the school holiday orders (based upon an error of reasoning or inadequate reasons) it is convenient to deal with those grounds together.
Ground One
The first ground of appeal addresses the weight that the trial judge placed upon various factors in determining the periods of time X will spend with the father during school term times. It was framed as follows:
1. The learned Judge erred in determining that it was not reasonably practicable for the child to spend 6 nights per fortnight with the Father during term time, and in doing so:
(a) placed insufficient weight on the Father’s concession that the Mother be permitted to relocate the child’s residence to the [Region C] area and his agreement to also relocate to [Region C];
(b) placed insufficient weight on the extent of the agreement between the parties; and
(c) placed too much weight on the young age of the child currently.
The proper approach to appeals concerning arguments as to weight was explained by Stephen J in Gronow & Gronow (1979) 144 CLR 513 at page 519, where his Honour said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
As was said in House v The King (1936) 55 CLR 499, where a specific error (such as the judge acting on wrong principle, taking into account irrelevant matters, or failing to take relevant facts into account) is not shown, then the appellant may persuade the appellate court that the judge failed to properly exercise the discretion if the decision is “unreasonable or plainly unjust”, thereby allowing the appellate court to infer that “there has been a failure properly to exercise the discretion … although the nature of the error may not be discoverable”.
The appellant argues that the trial judge failed to give adequate weight to the concession of the father (at the end of the trial) that the mother be permitted to relocate, the agreement of the parties for equal shared parental responsibility, and the parties’ agreement as to the primary school X would attend. The father also points to the references of the trial judge to X’s “young age”, arguing that the orders will remain in force for many years into the future and as such her present age was given too much weight.
These factors must be seen in the context of the matter as a whole, including the factors identified by the mother (Respondent’s Summary of Argument filed 27 October 2023, paragraph 3):
•that the parties were yet to develop a working co-parenting relationship: Reasons for Judgment, para [38];
•the parties’ communication was a “significant issue”: ibid, [52];
•that neither the appellant’s (or ICL’s) proposal addressed the practicalities likely to “impact” for the child by reason of the “poor” parental communication and the reality of their co-parenting relationship: ibid, [53];
•the parties’ conflict “remains high”: ibid, [57];
•the appellant did not trust the respondent: ibid, [57] and [85];1
•there was a “climate of parental mistrust and misunderstanding which continued the dysfunctional parental relationship to trial”: ibid, [68]; and
•that the appellant demonstrated little insight into the impact of his various criticisms of the respondent and the consequences there identified: ibid, [84].
The father’s concession with respect to relocation was specifically acknowledged by the trial judge. However, as the trial judge noted, this concession could not be seen in isolation. Her Honour had regard to the timing of the concession, the expert’s observation in the first report that “the father’s level of criticism of the mother … could not readily be interpreted as a normal response to normal types of problems that children may experience” and in the expert’s observation in the second report that “the father attempted not to be critical of the mother but was not overly successful at this” (Reasons, paragraph 69).
It cannot be said that the trial judge was only critical of the father. Her Honour noted that the parties had both contributed to conflict and that “neither has evidenced a great deal of insight into how they do this” (Reasons, paragraph 80). Relevantly, her Honour went on to identify that:
[82] Whilst the father is devoted to [X], the evidence suggests some deficits of insight into a care structure that would meet her need and a level of flexibility and problem-solving. His withholding of [X] over an issue to do with her medical care was a disproportionate response to his asserted concerns. It evidenced little insight into the impact of not returning [X] to the mother, especially when sick and at a time when she was likely seeking the comfort of the parent who usually cared for her.
The trial judge specifically addressed these issues, saying:
[70]…More time does not necessarily equate to a better parenting experience for [X], where it is unsupported by good parental communication and parental trust. The need to make prescriptive orders highlights the issue, including to limit the number and place of changeovers which had been a source of tension and conflict.
…
[112]Neither party seeks an order for equal time. Neither would such a structure meet the best interests of this child, given her age and primary care with her mother. Nor is the court able to conclude that that structure would be reasonably practicable given the parties’ communication and relationship difficulties.
[113] Similarly, the court finds that the time proposal of the father and the Independent Children’s Lawyer, which is almost equal time but would otherwise meet the definition of substantial and significant time in section 65DAA(3) would not meet the best interests of [X] for the same reason. Nor for the same reason with respect to the parents’ communication and relationship would it be reasonably practicable, the court not able to find on the evidence that the parents have a current and future capacity to implement an arrangement of 6 nights a fortnight for the child, or a current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind.
In the circumstances of this case the father has not established that the result reached by the trial judge showed that her Honour failed to accord appropriate weight to the factors identified. It was open to the trial judge to conclude that the recent events did not demonstrate that the conflict between the parties had eased sufficiently to lead to parenting orders that would require greater cooperation from the parties. The decision could not be said to be unreasonable, plainly unjust, or a failure to properly exercise the discretion. Ground 1 must therefore be dismissed.
Grounds 2 and 3
Grounds 2 and 3 are framed as follows:
2. The learned Judge erred in making Order 9(a)(iii) and order 9(b) and (c) (insofar as Order 9(b) and (c) relate to the December/January school holidays) in that they are orders which in fact reduce the child’s time with the Father during the December/January holidays as compared to term time.
3. The learned Judge failed to give any or any adequate reasons for the making of Order 9(a)(iii) and orders 9(b) and 9(c) (in so far as Order 9(b) and (c) relate to the December/January school holidays).
The father challenges the terms of the contact orders for the December/January school holidays. He argues that the effect of the orders (which provide for him to have only two periods of time with X in the six-week school holiday period) is less than the four nights per fortnight that he has with X during the non-holiday periods. The father argues that because the effect of the orders was to reduce his time with X during the long summer holidays, this shows an error and alternatively, are orders without adequate reasons by the trial judge. At the hearing of the appeal, the father also argued that the orders simply did not reflect the trial judge’s intention, however, no application was made to the trial judge under the slip rule.
The trial judge sets out in her reasons that:
[115] [X] will attend kindergarten in 2024 and prep in 2025. Whilst [X] has a loving relationship with her father, she has only recently turned 4 years of age and the proposal of the father ignores her age and the impacts for her of a separation from her mother.
[116] It was the evidence of [Ms D] in the recommendations in her second report that appears at paragraph 113e.(v) that whilst [X] has a good relationship with her father, and when she commences school may cope with spending a week with him during the school holidays, a week is still a long time at her age. If she was to experience problems, it is unlikely that her parents would be able to cooperate to address this. This may cause her problems with spending time with her father. She recommended that in her first year of attending prep or preschool she spend five nights with her father during the school holidays, with that time to increase to be a week at a time at Christmas. This would give [X] the opportunity to do this several times and increase her confidence in doing so.
[117]Balancing the various factors, including findings with respect to the parents’ relationship and the benefits to [X] in having some block time with the father and extended paternal family who do not live [in Region C], and the matters highlighted by [Ms D] in her second report with respect to increasing [X]’s time during the school holidays in a gradual way to assist her confidence, I have concluded that [X]’s best interests would be served by her spending:
(a)4 nights with her father as a block in each June/July, September and December 2023 school holidays gazetted for the State of Queensland,
(b)5 nights in each of the April, June/July, September and December 2024 school holidays, again gazetted for the State of Queensland,
(c)6 nights in each of the April, June/July and September 2025 school holidays, with two by 6-night block periods in the 2025 December school holidays separated by at least 7 days, and
(d)thereafter, for half of the school holidays, with the father to have the first half in 2026 and each alternate year thereafter, and the second half in 2027 and each alternate year thereafter, and the child to otherwise live with the mother during the school holidays.
The general approach by the trial judge to gradually increase the holiday periods as the child grew older was well within the reasonable ambit of discretion for such a young child in a case such as this, particularly given that time allotted to the father during the holiday reaches half of the period by 2026.
The father pointed to the use of the word “supplemented” in her Honour’s reasons at paragraph 70 (set out above) to argue that her Honour intended that there be more time during the holiday periods than during term time. A fair reading of paragraph 70 of the trial judge’s reasons is simply that the overall effect of the orders would be that there should be time during the school holidays as well as during the school term periods. This is the overall effect of the orders that were made, if viewed over the longer term.
After the trial judge gave reasons, her Honour noted that the terms of the day-to-day care orders meant that she would need to adjust the orders for the holiday periods and therefore heard further brief argument as to the precise terms of those orders (Transcript 27 June 2023, p.3 line 41 et seq.). Her Honour noted the wife’s argument that there should be no time during the holiday periods and rejected it. However, her Honour was concerned that the periods of time be no more than four nights in a row in the first year, with a break between periods of at least seven days for the child to be with her primary carer (Transcript 27 June 2023, p.5 line 11 et seq.). Her Honour also noted that (Transcript 27 June 2023, p.11 lines 12-36):
… at Christmas, parents are afforded an opportunity to have block time because it gives them an opportunity to go away and spend a little bit of extra time at a traditional time when parents do go away and in the father’s case, he will no doubt want to go down to [City B], spend time with his parents there. But it’s a trade off.
…
If we push this, then the child’s level of comfort may be impacted and her desire to spend time with her father at an increasingly block periods is likely to be impacted. Nobody wants that. I’m sure your client doesn’t want that. So he has just got to be patient with the process. That’s not a criticism of him but that’s the reality of, you know, welcome to parenthood. So I hope that explains it. It’s not a punishment to the father and it’s not a reflection of his relationship with the child. But it’s an opportunity for the mother to go away and spend some time with the child. And we’ve got here, the parents have agreed that they can travel overseas with the child.
When the reasons and the transcript of the argument are read as a whole it is apparent that the trial judge was balancing a number of relevant considerations:
(a)That the lengths of the blocks of time that X spends with her father should be increased over the next few years.
(b)That X should have at least seven days with the mother between periods of time with the father, at least for the next few years, given her young age;
(c)The logistics of ensuring that time over Christmas day is shared year about and that the parent who didn’t have X on Christmas day had time with her soon thereafter; and
(d)The importance for the mother to have holiday time with X (in contrast to the day-to-day care where routines must be maintained) particularly given that the parents had agreed to overseas travel.
Her Honour’s comment that “it’s a trade-off” makes it clear that she was well aware that the orders would have to be a pragmatic solution to the competing considerations in the case.
In the context of the findings in this case, the factors leading to the orders made by her Honour were all relevant, and the orders, in large part, appear to be within the reasonable ambit of her Honour’s discretion. The real issue that arises is whether the holiday time in the December/January period is too brief over the next three years, as it increases towards shared holiday time. The difficulty is that the orders as framed result in a reduction in the total time that X has with the father in the six weeks of Christmas/January holidays this year and next year when compared to the time she would have with her father during term periods. This logical difficulty would not have arisen had the father not moved to live closer to the child as he would then only have two nights per fortnight during term time. Indeed, I doubt that this difficulty would have occurred had her Honour been provided with draft proposals that canvased this possible outcome (which was not unlikely on the evidence) to assist her Honour in drafting orders that covered the differing possibilities, dependent upon whether the father relocated.
A reduction in time during the school holiday periods (compared to time during school terms), during the years when time is to increase towards shared holiday periods, is not a logical result in the circumstances of this case. The appellant has demonstrated that the orders, in this limited respect, are “unreasonable or plainly unjust” in the sense described in House v The King (1936) 55 CLR 499. Ground 2 is therefore successful in this respect.
Whilst the reasons for the orders dealing with holiday contact are brief and taken in part from the argument that led to the orders, determining the details of orders of this type is not a matter that requires lengthy reasons. What appears in the transcript is more than adequate (in light of the terms of the judgment) to explain why her Honour made the particular orders. Ground 3 must therefore be dismissed.
RE-EXERCISE OF THE DISCRETION
The parties and the Independent Children’s Lawyer all sought that I re-exercise the discretion with respect to parenting orders if the appeal was allowed. The appeal is allowed only on the limited issue with respect to the December/January school holiday periods for this year and the following two years (thereafter, the existing orders provided for shared holiday periods). The parties each provided brief supplementary submissions with proposed draft orders in the event that the appeal was allowed on this limited basis.
I am not persuaded to depart from the trial judge’s findings that, with regards to this year, the periods should be limited to four nights and that each period should be seven days apart.
As the appeal was heard after the commencement of the 2023/2024 December/January holiday period, two further practical considerations arise. First, part of the period has now passed, reducing the time within which changes can be made. Secondly, the mother, reliant upon the existing orders, has arranged to travel overseas on holiday from mid-January until the end of the period. Arrangements are already in place for the father to have time with X from 27 to 31 December 2023 and again from 7 to 11 January 2024. Having regard to the practical difficulties in the current holiday period, I am not persuaded that the orders should be varied for this period.
I am persuaded that it is appropriate to vary the orders with respect to the 2024/2025 and the 2025/2026 periods to provide for a total of three block periods between the father and X rather than two. Whilst this will place some limits upon the mother’s ability to travel, it is only for two years, following which the shared holiday time will commence. The orders I will make are otherwise in accord with the findings of the trial judge, an appropriate re-exercise of the discretion, and are in the form proposed by the Independent Children’s Lawyer and the mother.
COSTS
The appeal concerns parenting orders. The father has been successful on a point of law. The parties seek orders pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). It is appropriate to issue certificates under the Act in the circumstances of this case.
I will therefore order that the appeal be allowed, that the trial judge’s orders be varied to reflect the reasons set out above and that certificates be issued pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 22 December 2023
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