Philidor & Philidor

Case [2023] FedCFamC1A 192

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Philidor & Philidor [2023] FedCFamC1A 192

Appeal from: Philidor & Philidor (No 2) [2023] FedCFamC1F 496
Appeal number: NAA 196 of 2023
File number: MLC 9942 of 2020
Judgment of: AUSTIN, SCHONELL & STRUM JJ
Date of judgment: 15 November 2023
Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the mother appeals from interim parenting orders providing for the father to spend supervised time with the child – Where leave to appeal is not required from interlocutory parenting orders – Apprehension of bias – Where a consideration of the transcript, the reasons and the submissions made do not show apprehension of bias on part of the primary judge – Where the mother contended that the primary judge should have recused himself from further hearing the matter because of credit findings made – Where no application for recusal was made to the primary judge – Where the mother contended that the primary judge failed to follow the suggested legislative pathway of Goode & Goode (2006) FLC 93-286 (“Goode”) in making the interim parenting orders – Where the mother’s submissions misstated the law – Where the primary judge did follow the pathway suggested by the Full Court in Goode – Where the mother challenged credit findings made by the primary judge – Where the submissions amount to a complaint at their highest – Inadequacy of reasons – Where the reasons are clearly adequate – No error established – Appeal dismissed – Costs ordered in a fixed sum.     
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 61DA, 69ZR, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Legal Profession Uniform Conduct (Barristers) Rules 2015 (Vic) r 44

Cases cited:

Antoun v R (2006) 224 ALR 51; [2006] HCA 2

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

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

Chancellor & McCoy (2016) FLC 93-752; [2016] FamCAFC 256

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

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

Edwards v Noble (1971) 125 CLR 296; [2971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Goode & Goode (2006) FLC 93-286; [2006] FamCAFC 1346

Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159

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

Madden & Madden (2006) FLC 93-294; [2006] FamCA 1391

Northern Territory v Sangore (2019) 265 CLR 164; [2019] HCA 25

Philidor & Philidor [2023] FedCFamC1F 245

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Re Andrew (1996) FLC 92-692; [1996] FamCA 43

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128;

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Details
AGLC
Philidor & Philidor [2023] FedCFamC1A 192
Case
[2023] FedCFamC1A 192
Decision Date

CaseChat Overview and Summary

The appeal in this matter arises from interim parenting orders made by the primary judge in the Federal Circuit Court of Australia, which provided for supervised time with the child for the father. The mother appealed against these orders, arguing that the primary judge should have recused himself due to apprehended bias and that he failed to follow the legislative pathway suggested in Goode & Goode. The appeal was heard in the appellate jurisdiction of the Federal Circuit and Family Court of Australia.

The legal issues before the court included whether the primary judge demonstrated apprehended bias, whether he should have recused himself, and whether he correctly followed the legislative pathway in making the interim parenting orders. The court also needed to consider whether the reasons provided by the primary judge were adequate and whether the mother's submissions amounted to a complaint at their highest.

The court found no merit in the mother's arguments regarding bias and the pathway suggested in Goode. The reasoning and submissions made by the mother did not demonstrate any apprehended bias on the part of the primary judge. Furthermore, the court determined that the primary judge did follow the legislative pathway correctly, and the mother's submissions misstated the law in this regard. The court held that the reasons provided by the primary judge were clearly adequate, and no error was established in the making of the interim parenting orders. Consequently, the appeal was dismissed, and costs were ordered in a fixed sum of $20,000.

In conclusion, the court dismissed the mother's appeal and ordered her to pay the father's costs of and incidental to the appeal in the sum of $20,000. The decision highlights the importance of correctly following legislative pathways and providing adequate reasons in parenting cases, and underscores the appellate court's role in ensuring that the primary judge's decisions are well-founded and free from error.

Orders

Orders of the court

NAA 196 of 2023

MLC 9942 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS PHILIDOR

Appellant

AND:

MR PHILIDOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, SCHONELL & STRUM JJ

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The Amended Notice of Appeal filed 2 October 2023 is dismissed.

2. The appellant mother pay the respondent father’s costs of and incidental to the appeal fixed in the sum of $20,000.

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).

Background

Background to the litigation

While not doubting the correctness of Jess, it has no application to this appeal. Leave is not required in appeals from interim parenting orders (reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)). Either way, no recusal application was ever made to the primary judge. Consequently, there was no decree or decision that could be the subject of leave (ss 26(1)(h) and 28(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).BACKGROUND The parties commenced cohabitation in 2015, married in 2016 and separated on a final basis in 2020. There is one child of the relationship who was born in 2019. The mother gave evidence of an extensive history of family violence perpetrated by the father against her and the child prior to and after separation. The family violence was alleged to have included physical and verbal abuse as well as coercive and controlling behaviour. For his part, the father largely denied the allegations of family violence save for four instances of unlawful assault to which he pled guilty (at [32]). The primary judge noted that these instances of family violence occurred at the time of separation and found there had been no subsequent family violence (at [34]). The father said the mother perpetrated family violence on him. Following the breakdown of the relationship in 2020, the mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) in September 2020 seeking both parenting and property orders. The mother contended the father posed an unacceptable risk of harm to the child due to the extensive history of family violence, and her anxiety regarding that harm was likely to adversely impact upon her parenting capacity (at [9]). Consequently, she sought orders for sole parental responsibility and for the child to spend no time with the father (at [8]). The father and the ICL sought interim orders for supervised time with the child for twenty weeks after which the matter would come back to the Court. The father’s position was that if the Court subsequently finds that the mother is unwilling or unable to promote and facilitate a meaningful relationship, then the child should live with him (at [10]–[12]). The application for interim orders was opposed by the mother (at [13]). On 27 June 2023, the primary judge delivered his reasons for judgment and made interim orders for supervised time on a gradually increasing basis. In reaching that decision, his Honour found that the father had not “intentionally hurt [the child] or subjected him to abuse” (at 163]), and that he had not “subjected the mother or child to the level of family violence alleged” (at [187]).GROUND 1The [primary judge] demonstrated apprehended bias against the mother’s primary case in general, and as to any further hearing/s in the matter including pre-determining any bias application. (As per the original) (Bold emphasis added) It is apparent from the form of the ground and the mother’s Summary of Argument that Ground 1 comprises two parts. Firstly, “that the interventions and comments of the [primary judge] throughout the trial demonstrate that the [primary judge] misapprehended the task he was being asked to perform … and [had] lost the advantage of judicial detachment” (mother’s Summary of Argument filed 2 October 2023, paragraph 5) (citations omitted). Secondly, that having made credit findings adverse to the mother’s case, the primary judge should be recused from the further hearing.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no merit to Grounds 4 and 5. CONCLUSION For the above reasons the appeal will be dismissed.COSTS At the conclusion of the appeal, we sought submissions from the parties on the question of costs. The mother opposed an order for costs in the event that the appeal was dismissed. The mother’s senior counsel submitted that the mother was not in receipt of an income and that her property settlement had been expended in the payment of legal fees. The father sought costs in accordance with the Schedule of Costs filed 23 October 2023 if the appeal was dismissed. The schedule sought costs in the sum of $30,353.47. The father’s counsel submitted that he was employed as a schoolteacher, paid child support and that the mother’s asserted impecuniosity is not a basis for refusing to make a costs order (see Northern Territory v Sangore (2019) 265 CLR 164 at [27]). Notwithstanding the terms of s 117(1) of the Act, we have found the appeal to be wholly unsuccessful and are satisfied that the circumstances justify the making of an order for costs. Counsel for the father agreed that consistent with r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), we could fix costs in a specified sum irrespective of the costs sought and identified in the schedule. In those circumstances, the father’s counsel submitted that if we were to do so a proper sum would be $20,000. We are satisfied for the reasons given earlier that the circumstances justify the making of a costs order and that a sum of $20,000, notwithstanding the mother’s asserted impecuniosity, is a just amount. An order for costs fixed in the sum of $20,000 will be made.

Ratio Decidendi

Legal Principle Established

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