Navickas & Fried (No 2)
[2025] FedCFamC1A 80
•7 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Navickas & Fried (No 2) [2025] FedCFamC1A 80
Appeal from: Navickas & Fried (No 3) [2024] FedCFamC2F 1779 Appeal number: NAA 343 of 2024 File number: LEC 175 of 2021 Judgment of: SCHONELL J Date of judgment: 7 May 2025 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appellant appeals final parenting orders – Where the primary judge found that each party had perpetrated family violence and that the bests interests of the children necessitated a change of residence and sole parental responsibility from the appellant to the respondent – Where the appellant contends a denial of procedural fairness and apprehended bias – Where the appeal was opposed by the respondent and initially opposed by the Independent Children’s Lawyer – Where the respondent contends the learned judge applied the incorrect law but that application of the correct law to the primary judge’s findings of fact would lead to the same result – Where the Independent Children’s Lawyer in submissions conceded that there had been an error of law and that the appeal must be allowed – Where the primary judge erred at law by considering section 60CC of the Family Law Act 1975 (Cth) as amended – Appeal allowed – Proceedings remitted for re-hearing – Costs certificates granted. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 61CA
Family Law Amendment Act 2023 (Cth) Sch 1, Its 12, 25(1), 25(2)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Lane & Nichols (2016) FLC 93-750; [2016] FamCAFC 234
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 31 Date of hearing: 17 April 2025 Place: Sydney Counsel for the Appellant: Mr Alexander with Ms Karaman Solicitor for the Appellant: Paddingtons Lawyers and Attorneys Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Parker & Kissane Counsel for the Independent Children's Lawyer: Ms Smith Solicitor for the Independent Children's Lawyer: McVittie Legal ORDERS
NAA 343 of 2024
LEC 175 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NAVICKAS
Appellant
AND: MR FRIED
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
7 MAY 2025
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The proceedings under Pt VII of the Family Law Act 1975 (Cth) be remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing by a judge other than the primary judge.
3.The orders of the primary judge made on 12 December 2024 be set aside as and from the date upon which the proceedings are next listed for a defended hearing before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth).
4.The appellant mother is granted a costs certificate pursuant to the provisions of 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 mother in respect of the costs incurred by her in relation to the appeal.
5.The respondent father and the Independent Children’s Lawyer are 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 them in respect of the costs incurred in the appeal.
6.The appellant, the respondent and the Independent Children’s Lawyer are granted costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred by them in relation to the rehearing.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Navickas & Fried has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Further Amended Notice of Appeal filed 16 December 2024, the appellant mother (“the appellant”) appeals final parenting orders made under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 12 December 2024. The appeal was opposed by the respondent father (“the respondent”) and initially opposed by the Independent Children’s Lawyer (“the ICL”).
For reasons which follow, the appeal will be allowed.
BACKGROUND
The proceedings relate to the parties’ two children who at the time of judgment were aged six and four years. Both children have special needs, had been primarily cared for by the appellant since birth, and had spent little if any time with the respondent.
The hearing initially commenced on 11 September 2023 and proceeded over 18 days in September 2023, April 2024, July 2024 and September 2024. Over the course of the hearing, each of the parties’ applications changed such that by the time of submissions the respondent sought final orders for the children to live with him and to spend supervised time with the appellant whilst the appellant sought orders that the children live with her and spend no time with the respondent. Each party contended that the other posed an unacceptable risk of harm to the children.
The primary judge in a comprehensive judgment comprising some 400 paragraphs carefully analysed the evidence and the competing claims of each party. A significant aspect of the judgment was the primary judge’s findings as to credit and preferring the evidence of the respondent to that of the appellant.
The primary judge found that each party had perpetrated family violence. The primary judge placed significant weight on the evidence of a single expert child psychologist. The primary judge found that there was a “significant risk of harm to the children in the appellant’s primary care” at [347] and that it was necessary to keep the children safe from the appellant. The primary judge found that the children’s best interests were served by living with the respondent and for him to have sole parental responsibility at [354]. The primary judge carefully considered the impact upon the children of the orders, noting that they will face difficulties in transitioning into the respondent’s care but that such difficulty would be outweighed by the positive benefits of living in his primary care assisted and surrounded by adults who would meet the children’s needs in a positive way at [359].
The primary judge made orders for the children to live with the respondent, for the appellant to spend time with the children in the last week of January 2025 for one supervised visit for a period of four hours and thereafter visits of supervised time for up to four hours four times a year with such time to occur during school holidays.
A stay of the orders the subject of appeal was refused on 18 December 2024.
THE APPEAL
The Amended Notice of Appeal contained ten grounds, three of which contained multiple sub-grounds. Some of the grounds overlapped, including the grounds contending denial of procedural fairness and apprehended bias.
Relevant to the disposition of the appeal, the respondent filed a Notice of Contention which provided:
1.That the learned judge applied the incorrect law, however, application of the correct law to her Honour’s findings of fact would lead to the same result.
The appellant filed submissions in reply to the Notice of Contention contending:
2.The Appellant accepts that the learned trial judge applied the incorrect statutory provisions, being those amendments which came into effect on 6 May 2024, consistent with that which the Appellant includes in her Grounds of Appeal before the Court and as submitted already in respect her Honour’s application of incorrect legal principle.
Despite so saying, no ground of appeal or aspect of the appellant’s Summary of Argument actually addressed such error.
During the course of the appeal, the focus of the appellant’s case departed from the enumerated grounds and the Summary of Argument to address the primary judge’s engagement with the provisions of s 60CC of the Act as currently enacted, contending that the primary judge erred in law by so doing.
The ICL conceded in submissions, notwithstanding the stance in their Summary of Argument, that there had been an error of law and that the appeal must be allowed.
The respondent, consistent with the Notice of Contention, conceded error but contended that the same result would arise, drawing support for such contention from the observations of the Full Court in Oswald & Karrington (2016) FLC 93-726 (“Oswald”) where their Honours observed as follows:
48.…Provided all relevant considerations identified in the statute are considered and ultimately balanced in the reasoning process to the overall determination of the paramount consideration of best interests (s 60CA), no error will be demonstrated despite the consideration of the various statutory provisions out of their sequence or conventional order.
The respondent’s submission is an erroneous conflation of two disparate matters. Oswald while undoubtedly correct did not, as is the case here, involve an erroneous application of law. Here, the primary judge proceeded in determining the matter by the application of incorrect principle and no alchemy of words can avoid the inevitable conclusion of such approach.
DISCUSSION
It is not the task of this court to ignore error simply because it is not entreated by the appellant in a Notice of Appeal or Summary of Argument (Warren v Coombes (1979) 142 CLR 531).
Items 12 and 25(1) of Schedule 1 of the Family Law Amendment Act 2023 (Cth) (“the Amendment Act”) commenced on 6 May 2024. By Item 25(2), s 61CA of the Act as inserted commenced on 6 May 2024. Item 12 of the Amendment Act states in relation to s 60CC of the Act as follows:
12 Application provision
The amendments of the Family Law Act 1975 made by this Part apply in relation to the following proceedings:
(a) proceedings instituted on or after the day this item commences;
(b)proceedings instituted before, and not finally determined by, the day this item commences, other than proceedings in respect of which a final hearing has commenced by the day this item commences.
Given the hearing first commenced on 11 September 2023 and had not concluded by 6 May 2024, the hearing was to be decided by application of the law as it existed before 6 May 2024. Unfortunately, the primary judge did not determine the matter according to law. The parties are agreed that the primary judge determined the matter by applying the Act as amended by the Amendment Act which changed in a significant and substantial way the provisions of s 60CC of the Act.
In that respect, the primary judge recorded in her reasons for judgment as follows:
50In determining the parenting issues, I have in accordance with Banks & Banks (2015) FLC 93-637, considered all the relevant sections of Part VII Family Law Act 1975, including the considerations in section 60CC, although within these reasons each section or subsection may not have been specifically addressed or discussed or identified.
Thereafter commencing at [355], the primary judge addressed various considerations encapsulated by s 60CC of the Act as they now exist as amended by the Amendment Act. It is conceded by all parties that no aspect of her Honour’s determination addressed the primary and secondary considerations in s 60CC of the Act as they previously existed. It is conceded by all parties that they addressed the primary judge on the law as applicable.
A failure to consider the applicable statutory considerations is an error of law.
As their Honours observed in Lane & Nichols (2016) FLC 93-750:
72.Whilst it must be acknowledged that it will be a rare or exceptional case where an error of law established on appeal, comprising misapprehension of evidence on the part of a judge at first instance, does not lead axiomatically to an appeal from the decision being allowed there are, albeit limited, exceptions.
No such exception arises in the context where the court below proceeds upon an incorrect principle of law. Where such error is established then the appeal must be allowed. Where the appeal must be allowed it is unnecessary to address the other grounds (Boensch v Pascoe (2019) 268 CLR 593) and even less desirable to do so where if remitted another judge will need to determine the disputed factual contentions.
In her amended Notice of Appeal, the appellant seeks a remitter and for the orders to be set aside. Each of the respondent and the ICL submitted that the Court could and should re-exercise discretion.
The appellant’s counsel in support of remitter submitted that the appellant wished to adduce further evidence as to the current arrangements for the children, how time had proceeded, the father’s compliance with orders and the impact on the children of the current arrangements. In Allesch v Maunz (2000) 203 CLR 172 the High Court observed as follows:
31If on an appeal by way of rehearing from a discretionary judgment an appellate court is minded to exercise the discretion in question by reference to circumstances as they exist at the time of the appeal, it is necessary that the parties be given an opportunity to adduce evidence as to those circumstances...
In those circumstances and notwithstanding that a rehearing is “an order of last resort” (CDJ v VAJ (1998) 197 CLR 172 at [103]) the necessary consequence is that the matter will have to be remitted for hearing before a judge other than the primary judge.
The appellant urged that the orders made by the primary judge be discharged such that the children be returned to her care and that the children spend supervised time with the respondent. Section 36(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that the Court in the exercise of its appellate jurisdiction may do any of the following:
36 Form of judgment on appeal
(1)Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
(a)affirm, reverse or vary the judgment appealed from; or
(b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; or
(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; or
(d)award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
I am not satisfied that in all the circumstances an immediate discharge of the orders is appropriate given the children have now resided with the respondent for nearly five months. I am satisfied that the orders the subject of the appeal should be set aside as and from the date upon which the proceedings are next listed for hearing as opposed to directions before a judge exercising original jurisdiction under Part VII of the Act. In that way a judge can determine what orders are in the children’s best interests between that date and a final hearing.
DISPOSITION
For the reasons given above the appeal will be allowed.
Each of the parties sought a cost certificate for the appeal and the rehearing in the event the appeal succeeded on an error of law. I am satisfied that where the appeal has succeeded on an error of law it is appropriate to grant costs certificates to each of the parties and will so order.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 7 May 2025
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