FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Nuan & Lei [2023] FedCFamC1A 211
Appeal from: Lei & Nuan (No 2) [2023] FedCFamC2F 628 Appeal number: NAA 137 of 2023 File number: BRC 7418 of 2021 Judgment of: CHRISTIE J Date of judgment: 1 December 2023 Catchwords: FAMILY LAW – APPEAL – FINAL PARENTING ORDERS – Procedural fairness – Whether the primary judge’s involvement in cross-examination amounted to procedural unfairness – Where some of the primary judge’s interventions can be characterised as having “moved into counsel’s shoes” – Where the appellant was permitted to file and rely on all evidence he wished to rely upon and no act of the primary judge prevented the appellant from same – Where the primary judge did not preclude the appellant’s counsel from making submissions on the appellant’s behalf – Where the primary judge’s interventions did not deny the appellant a fair trial nor were they productive of a miscarriage of justice – Unacceptable risk – Whether the primary judge erred in finding there was an unacceptable risk in the children spending unsupervised time with the appellant – Where the underlying facts upon which the primary judge relied were not flawed – Where the primary judge had before him uncontroversial evidence as to threatening and abusive conduct of the appellant and unsatisfactory evidence as to possible recurrence of that conduct – Long-term supervision – Whether the primary judge making an order for the children’s time with the father to be supervised indefinitely constituted error – Where it was open to the primary judge to make an order for indefinite supervision – Whether the primary judge failed to consider that the respondent may remove the children to Country E where she is a citizen – Where the evidence did not establish there was a risk the respondent would unilaterally change the children’s place of residence overseas – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60I Cases cited: Adacot & Sowle [2020] FamCAFC 215
B and B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222
Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edinger & Duy [2023] FedCFamC1A 194
Ellis v The Queen [2015] NSWCCA 262
Galea v Galea (1990) 19 NSWLR 263
Granville & Blakeslee (2017) 57 Fam LR 55; [2017] FamCAC 162
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
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- AGLC
- Nuan & Lei [2023] FedCFamC1A 211
- Case
- [2023] FedCFamC1A 211
- Decision Date
CaseChat Overview and Summary
The court examined whether the primary judge’s involvement in cross-examination constituted procedural unfairness, noting that while some interventions could be seen as the judge moving into counsel’s role, the appellant was still able to present all desired evidence and counsel was permitted to make submissions. The court found that the primary judge’s actions did not deny the appellant a fair trial or result in a miscarriage of justice. Regarding the unacceptable risk finding, the court upheld the primary judge’s conclusion based on uncontroversial evidence of the appellant’s threatening and abusive conduct, despite unsatisfactory evidence regarding the recurrence of such conduct. The court also determined that the primary judge was justified in ordering indefinite supervision given the circumstances. Lastly, the court found no error in the primary judge’s consideration of the respondent’s potential relocation of the children, as the evidence did not establish a significant risk of such an action.
The appeal was dismissed, and no order was made as to costs. The primary judge’s decisions on procedural fairness, unacceptable risk, and long-term supervision were affirmed, and the concerns about the respondent's potential relocation were found to be unfounded. The court's order reflects a comprehensive review of the primary judge’s findings, maintaining the integrity of the family law proceedings while ensuring the children's welfare remains paramount.
Orders
Orders of the court
NAA 137 of 2023
BRC 7418 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR NUAN
Appellant
AND:
MS LEI
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
1 DECEMBER 2023
THE COURT ORDERS THAT:
1. Appeal NAA 137 of 2023 is dismissed.
2. There be no order as to costs.
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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