Pachis & Turnbull

Case [2023] FedCFamC1A 110

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pachis & Turnbull [2023] FedCFamC1A 110  

Appeal from: Turnbull & Pachis [2023] FedCFamC2F 253
Appeal number(s): NAA 62 of 2023
File number(s): BRC 15185 of 2022
Judgment of: TREE J
Date of judgment: 10 July 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from final parenting orders providing for no contact between herself and the children – Whether the primary judge failed to afford the mother procedural fairness – Whether the primary judge demonstrated bias – Adequacy of reasons – Where most of the purported grounds are not proper grounds of appeal and lack particularity – Where no ground of appeal succeeds – Appeal dismissed – Costs ordered in favour of the Independent Children’s Lawyer.
Legislation:

Family Law Act 1975 (Cth) ss 69ZN, 69ZQ

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 67, 69
Cases cited:

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

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

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

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

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Naparus & Frankham (2020) FLC 93–943; [2020] FamCAFC 32

Sieger & Department of Communities and Justice [2020] FamCAFC 172

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 41
Date of hearing: 4 July 2023
Place: Cairns (via video link)
The Appellant: Self-represented litigant
The Respondent: Self-represented litigant
Counsel for the Independent Children's Lawyer: Ms Tree
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

NAA 62 of 2023
BRC 15185 of 2022

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

MS PACHIS

Appellant
AND:

MR TURNBULL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

TREE J

DATE OF ORDER:

10 July 2023

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the Independent Children’s Lawyer’s costs in the sum of $4,945.57 within 28 days.

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 Pachis & Turnbull has been approved pursuant to s 121(9)(g) of the Family Law Act

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AGLC
Pachis & Turnbull [2023] FedCFamC1A 110
Case
[2023] FedCFamC1A 110
Decision Date

CaseChat Overview and Summary

The appeal concerns the dispute between the mother and father over the parenting arrangements of their two children. The case was heard by the Family Court of Australia, with the mother appealing the decision made by the primary judge on 28 February 2023. The primary judge had previously determined that a sufficient change of circumstances existed to warrant re-litigation, despite a trial being held only months earlier. The father had sole parental responsibility for the children, with the children spending regular unsupervised time with the mother. However, the mother started withholding the children from the father, leading to a recovery order being made and the children spending supervised time with the mother at a contact centre.

The legal issues the court had to decide were primarily related to the exercise of discretion by the primary judge in re-litigating the parenting arrangements and the change of circumstances that warranted such action. The mother argued that the primary judge had erred in exercising his discretion, particularly in relation to the timing and necessity of re-litigating the matter. The court had to determine whether the primary judge had correctly exercised his discretion in light of the principles set out in House v The King. The mother initially raised 40 grounds of appeal, which were subsequently reduced to 24 after being struck out by an Appeal Judicial Registrar.

The court found that the primary judge had correctly exercised his discretion in re-litigating the matter. The court noted that the mother was attempting to re-run her case, which is not the purpose of an appeal. The court held that the primary judge had considered the relevant factors and had provided sufficient reasons for his decision. The court found no appealable error in the primary judge’s decision and dismissed the appeal. The final orders of the primary judge were upheld.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, the appeal will be dismissed.BACKGROUND The mother was born in 1991 and is presently 32 years of age. The father was born in 1986 and is presently 36 years of age. They commenced cohabitation in 2012 and finally separated in 2015. Their two children were born in April 2014 and September 2015, making them presently 9 and 7 years of age. Post separation the parties have been in a protracted dispute about the children. After six days of trial, on 23 September 2022, final parenting orders were made by a Federal Circuit and Family Court of Australia (Division 2) judge (“the first judge”) pursuant to which the father had sole parental responsibility for the children, who would primarily live with him, but spend regular unsupervised time with the mother. However those orders did not work, as the mother almost immediately started withholding the children from the father. That saw him seek a recovery order, together with a variation to the final parenting orders to the effect that the children would spend no time with the mother. In due course a Senior Judicial Registrar made a recovery order, and varied the parenting orders such that, on an interim basis, the children spent supervised time with the mother at a contact centre. The matter then came into the docket of the primary judge, who on 13 February 2023 determined that there was a sufficient change of circumstances to warrant re-litigation notwithstanding that a trial had been held only some months previously. Whilst I shall need to address what occurred on 13 February 2023 in more detail shortly, suffice to say that on that date the matter was listed for final hearing before the primary judge on 28 February 2023, at the conclusion of which, for reasons delivered ex tempore, the primary judge made the orders from which this appeal is brought.THE APPEAL Before considering the grounds, it should be noted that this is an appeal against the exercise of discretion, and hence falls to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 (“House v The King”). That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). Therefore an appeal is not an opportunity for the appellant to re-run their case in an attempt to convince the appeal court that, absent appealable error of the kind identified in House v The King, it should nonetheless come to a different conclusion. However in large part, that appears to be what the mother is trying to do in this appeal. Although initially she agitated 40 grounds of appeal, after an Appeal Judicial Registrar struck out 16 grounds at a procedural hearing, there remained 24 grounds. Whilst no amendment of the grounds was formally undertaken, the mother structured her Summary of Argument by, in effect, renumbering the remaining grounds, and I shall adopt that course in these reasons as well.

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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