Moon and Moon (No. 2)

Case [2022] FedCFamC1A 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Moon & Moon (No. 2) [2022] FedCFamC1A 69

Appeal from: Moon & Moon [2021] FedCFamC2F 418
Appeal number(s): NAA 81 of 2021
File number(s): BRC 10802 of 2020
Judgment of: TREE J
Date of judgment: 18 May 2022
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the father appeals from interim parenting orders, refusal of disqualification and dismissal of interim applications – Whether there has been a denial of procedural fairness – Apprehended bias – Adequacy of reasons – Whether the primary judge failed to take into account a relevant consideration – Whether decision was unjust or plainly wrong – Where the grounds of appeal were incompetent or lacked particularity – No appealable error established – Appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the application sought to strike out evidence relied upon by the primary judge, and to refer and publish the proceedings – Where the Full Court has no power to do so – Application dismissed.  
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 35
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

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

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 52
Date of hearing: 12 May 2022
Place: Cairns (via video link)
The Appellant: Litigant in person
Counsel for the Respondent: Ms Pendergast
Solicitor for the Respondent: WP Lawyers
Counsel for the Independent Children's Lawyer: Ms Kirkman-Scroope
Solicitor for the Independent Children's Lawyer: Smithson Lawyers

ORDERS

NAA 81 of 2021
BRC 10802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR MOON

Appellant
AND:

MS MOON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 28 April 2022 is dismissed.

2.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…

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AGLC
Moon and Moon (No. 2) [2022] FedCFamC1A 69
Case
[2022] FedCFamC1A 69
Decision Date

CaseChat Overview and Summary

The appeal in Moon and Moon (No. 2) was brought by Mr. Moon against the decisions of the primary judge in the Federal Circuit and Family Court of Australia, which dismissed his interim applications for parenting orders. The primary judge's decisions included the refusal to disqualify herself on the basis of apprehended bias and the dismissal of interim applications for parenting arrangements. The appeal was dismissed by the Full Court on the grounds that no appealable error was established and that the grounds of appeal were either incompetent or lacked particularity. Additionally, the application to strike out evidence and refer and publish the proceedings was dismissed as the Full Court has no power to do so.

The legal issues in this case centered on whether there was a denial of procedural fairness, apprehended bias, and whether the primary judge failed to take into account relevant considerations. The appeal raised multiple grounds, including failure to consider material evidence, unjust or plainly wrong decisions, and inadequate reasons. The Full Court assessed each ground individually and concluded that none of them demonstrated an appealable error. Specifically, the Full Court found that the primary judge had properly considered the Temporary Protection Order and other evidence, and that the reasons provided were sufficient despite not mentioning every fact or argument.

In its reasoning, the Full Court emphasized that the primary judge's decision on interim parenting orders was clearly open on the evidence presented. It also highlighted that the primary judge had not erred in her consideration of the evidence, including the Temporary Protection Order and subpoenaed material. The Full Court found that the primary judge's reasons for her decisions were adequate, and that the father's allegations of bias and unjust decisions were unsubstantiated. Consequently, the appeal was dismissed, and the interim orders made by the primary judge were upheld.

No party sought any order for costs, and the appeal was dismissed in its entirety. The final orders of the court included dismissing the application in the appeal filed on 28 April 2022 and dismissing the appeal itself. The form of the order is subject to entry in the Court’s records, and any minor typographical or grammatical errors may be reviewed and corrected as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NAA 81 of 2021

BRC 10802 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR MOON

Appellant

AND:

MS MOON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

TREE J

DATE OF ORDER:

18 MAY 2022

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 28 April 2022 is dismissed.

2. 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.

Background

Background to the litigation

For the reasons which follow, the appeal will be dismissed.BACKGROUND The parents commenced their relationship in 2007, were married in December 2009 and separated on a final basis in December 2019. Their three children are presently aged nine, six, and four. Following separation, the children lived with the mother and initially spent time with the father during the day, before commencing to spend overnight time with him on weekends. Following mediation, this time increased to the point where the children spent four nights and one afternoon per fortnight with the father. In August 2020, a Temporary Protection Order was made in the Suburb A Magistrate’s Court listing the mother as the respondent and the father as the aggrieved. On 11 August 2020, the father commenced these proceedings. On 3 February 2021, the father filed an Application in a Case seeking orders for equal shared parental responsibility other than in respect of education and health matters, and that the children be enrolled at a particular school and day care. The mother responded to the application seeking that she have sole parental responsibility and that the children continue to be home-schooled. On 7 July 2021, the parties’ competing interim applications came before a senior registrar for hearing, however those applications were adjourned on the application of the mother and the ICL in order to await the publication of a family report. The senior registrar made interim orders in the same terms as the then current parenting arrangements. On 14 July 2021, the father filed an application to review the senior registrar’s decision. In that application he also sought that leave be granted to him to arrange a private family report, and that the children spend equal time with each parent. That application was listed before the primary judge on 21 July 2021, on which occasion her Honour adjourned it for hearing on 29 September 2021. Next, on 16 July 2021, the father filed an Application in a Case seeking that the ICL be discharged, the solicitor for the mother be restrained from acting further in the proceedings, and that he be given leave to privately arrange a family report. On 30 July 2021, the primary judge heard and dismissed the father’s application to review a registrar’s decision on 26 May 2021 to grant a divorce order in relation to the parties, which order became absolute on 27 June 2021. It was at that hearing that the father first raised issues of apprehended bias. On 28 September 2021, a family report was filed in which the report writer made recommendations for the children to live with the mother and spend alternative weekends with the father. The father had not attended the family report interviews and thus the report was limited by that factor. On 29 September 2021, the primary judge heard all of the pending interim applications. At that hearing, the father also raised allegations that her Honour had shown apprehended bias, as had the ICL, the mother’s solicitor and the family report writer.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Given that the interim parenting orders made by the primary judge were clearly open on the evidence, I am not so satisfied, and hence this ground fails. CONCLUSION No ground of appeal is made out, and therefore the Notice of Appeal will be dismissed. In that event, no party sought any order for costs.

Ratio Decidendi

Legal Principle Established

These grounds fail. Failure to take into account material consideration – Ground 2 This ground contends:2.The learned Trial Judge failed to take into account a material consideration that the respondent had a current Temporary Protection Order for Family Violence as the respondent for an application including the Children and also subpoenaed material available from the, now, Department of Child Safety, Youth Justice and Multicultural Affairs.(As per the original) Demonstrably, at [58] the primary judge did precisely what this ground asserts she did not do in relation to the protection order. Further, whilst the primary judge’s reasons did not expressly advert to the subpoenaed material referred to in this ground, it is not incumbent upon a judge to mention every fact or argument relied on by the losing party as relevant to an issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]). Ground 2 fails.Adjourning the matter without interim orders – Ground 3 This ground reads:3.The learned Trial Judge decision to adjourn the matter indefinitely to a date to be fixed in February, without Interim Orders is plainly wrong as the appellant filed an initiating application, including Interim Orders sought and Notice of Risk on 11 August 2021 for the safety, care, welfare and development of the Children.(As per the original) The challenge made by this ground is not possible to understand, whether from the ground itself or the submissions advanced under it. Interim parenting orders were explicitly made by the primary judge on 19 November 2021. This ground fails.Failure to provide notes of Child Inclusive Conference – Ground 5 This ground reads:5.The learned Trial Judge has not provided notes or Orders for notes to be provided of the Child Inclusive Conference by Ms B, as requested to Chambers, to establish whether a line of questioning was appropriate for the Children interviewed and materials considered.(As per the original) There was no obligation on the primary judge to respond to requests from the father for the relevant notes, and at least on one view, his direct communication with the primary judge’s chambers was inappropriate. No Application in a Case was filed seeking the production of the notes. This ground is without merit.Decision unjust or plainly wrong – Ground 10 This ground reads:10.The Learned Trial Judge on 29 September 2021 decisions are plainly unjust as the Appellant applied for Parenting Orders for the safety, care and welfare of the Children, of necessity and with urgency by instruction of the Magistrate after issuing a Temporary Protection Order (TPO) as the applicant in these proceedings and aggrieved party with the TPO for an incident including the Children yet has had parental responsibility removed as the applicant and granted to the respondent Mother despite the evidence, including Subpoenaed evidence and the Mother’s inability to promote a meaningful relationship with the Father and cooperate for the benefit of the Children, that the Children live with the Mother.(As per the original)