Pitter & Baier (No 2)

Case [2024] FedCFamC1A 197

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Pitter & Baier (No 2) [2024] FedCFamC1A 197

Appeal from: Baier & Pitter [2024] FedCFamC2F 586
Appeal number(s): NAA 124 of 2024
File number(s): BRC 16352 of 2022
Judgment of: RIETHMULLER J
Date of judgment: 25 October 2024
Catchwords:

FAMILY LAW – APPEAL – PARENTING – Appellant challenges jurisdiction of the Court – Pseudolegal arguments dismissed– Where the appellant was not denied procedural fairness when he failed to put evidence forward at trial – Where appellant did not engage in family report process – Where appellant is critical of primary judge for not pursuing evidence on his behalf –No grounds of appeal established – Appeal dismissed.

FAMILY LAW – APPEAL – PARENTING –Unacceptable risks – Risks warranting supervision – Nature of risks not limited to “immediate” risks – Risks that are not “immediate” can be unacceptable as can risks from insidious behaviour over time – Primary judge correct to order supervision to ameliorate risks.

Legislation:

Admiralty Act 1988 (Cth)

Family Law Act 1975 (Cth) ss 65D, 102NA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 132, 256

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)Cestui Que Vie Act 1666 (UK)

Sedition Act 1918 (US)

Trading with the Enemy Act 1917 (US)
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Cruden v Neale, 2 N.C. 338 (1796)

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

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Pitter & Baier [2024] FedCFamC1A 86

Planck & Planck [2024] FedCFamC1F 341

Sharman v Evans (1977) 138 CLR 563; [1977] HCA 8

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Number of paragraphs: 42
Date of hearing: 15 October 2024
Place: Sydney
Counsel for the Appellant: Litigant in person
Counsel for the Respondent: Litigant in person
Counsel for the Independent Children's Lawyer: Ms Lawrence
Solicitor for the Independent Children's Lawyer: Legal Aid Queensland

ORDERS

NAA 124 of 2024
BRC 16352 of 2022

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

MR PITTER

Appellant
AND:

MS BAIER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:

1.Leave to appeal from the orders of 30 December 2022 be refused.

2.Appeal NAA 124 of 2024 be 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…

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AGLC
Pitter & Baier (No 2) [2024] FedCFamC1A 197
Case
[2024] FedCFamC1A 197
Decision Date

CaseChat Overview and Summary

The appeal in Pitter & Baier (No 2) before the Federal Circuit and Family Court of Australia concerned a dispute between the appellant, Mr Pitter, and the respondent, Ms Baier, regarding parenting arrangements for their children. The primary judge had made orders awarding sole parental responsibility to Ms Baier and restricting Mr Pitter's contact to supervised visits, based on findings of unacceptable risks posed by Mr Pitter. Mr Pitter appealed these findings and orders, asserting several grounds of error, including issues of jurisdiction, procedural fairness, and the interpretation of the Family Law Act 1975 (Cth).

The court was required to determine whether the primary judge erred in dismissing Mr Pitter’s jurisdictional challenge based on pseudolegal arguments, whether procedural fairness was compromised during the trial, and whether the primary judge correctly assessed the risks posed by Mr Pitter and ordered appropriate supervision. The court also needed to consider if the primary judge erred in interpreting the applicable legal principles concerning the best interests of the children.

The court found that Mr Pitter's challenges to the court's jurisdiction and procedural fairness were unfounded. The court dismissed the argument that Mr Pitter was denied a fair hearing, noting that he had not provided evidence to support his claims and did not engage in the family report process. The court rejected Mr Pitter's criticism of the primary judge for not pursuing evidence on his behalf, stating that Mr Pitter had an opportunity to present evidence but chose not to do so. The court also found that the primary judge correctly identified the risks posed by Mr Pitter, including his impulsivity, lack of insight, mental health concerns, and drug use, and rightly ordered supervision to mitigate these risks. The court held that risks to the children need not be immediate to be unacceptable and can include insidious behaviour over time. The appeal was dismissed as no grounds of appeal had been established.

The court ordered that leave to appeal from the orders of 30 December 2022 be refused and that the appeal be dismissed.

Orders

Orders of the court

NAA 124 of 2024

BRC 16352 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PITTER

Appellant

AND:

MS BAIER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

RIETHMULLER J

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:

1. Leave to appeal from the orders of 30 December 2022 be refused.

2. Appeal NAA 124 of 2024 be 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).

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.

Background

Background to the litigation

The respondent sought orders for sole parental responsibility and for the children to live with her. The appellant also sought sole parental responsibility and for the children to live with him. The appellant was self-represented at trial, despite an order being in force pursuant to s 102NA of the Family Law Act 1975 (Cth) that prevented the parties from personally cross-examining one another and the consequential availability of funding for legal representation pursuant to the Family Violence and Cross-examination of Parties Scheme.BACKGROUND The appellant challenged the Court's jurisdiction relying upon pseudolegal arguments. This challenge was rejected by the primary judge: at [90]-[101]. The primary judge found that the appellant posed an unacceptable risk of harm to the children based upon a number of reasons set out in the judgment, including:(a)The appellant’s view that the children were his property, referring to the five-year-old children as his "young women" and "property" (at [62],[63], [133] and [156]);(b)That the appellant was impulsive and lacked insight into the impact of his actions on the children (at [128],[137]-[139]), for example:(i)He had previously kept the children from the respondent for seven days without her consent (at [128]);(ii)Leaving the children unsupervised when overwhelmed (at [138]); and(iii)Driving dangerously with the children in the car (at [139]).(c)Concerns about the appellant’s mental health and potential drug use (at [130]-[132], and [137]); and(d)The appellant’s failure to meaningfully engage in the court process, including not participating in the Family Report or completing court-ordered programs (Expert Report of Dr F dated 14 June 2023 at paragraph 42; [79] and [124]). In contrast, the primary judge found the respondent to be a capable and loving parent with no substantiated risks concerning her care of the children: at [117]-[123]. The primary judge made orders for the respondent to have sole parental responsibility: at [161]-[163], for the children to live with the respondent: at [164]-[167], and the appellant to have supervised time with the children, conditional on completing a parenting program and drug testing: at [168]-[170]. The primary judge also made restraining orders preventing the appellant from approaching the respondent's residence or the children's school: at [173]-[175]. The trial judge concluded that these orders were in the best interests of the children, prioritising their safety and stability while maintaining some relationship with the appellant under controlled conditions: at [180].GROUNDS OF APPEAL The appellant sets out six grounds of appeal. Grounds 3 and 6 are dealt with first, as they go to questions of jurisdiction, followed by Ground 1 as it goes to questions of procedural fairness. Ground Three3. Procedural Fairness and Right to a Fair Hearing:•The judge dismissed the father's application for the court to review jurisdiction and related procedural matters without proper consideration, which led to the father's concerns being inadequately addressed during the trial. •The father was denied the opportunity to fully present his case, including the rejection of key pieces of evidence and the lack of consideration for his mental health assessment and drug testing results, which were allegedly mishandled.Ground Six6. Jurisdictional and Legal Misinterpretation:•The trial judge misinterpreted the father’s legal arguments regarding jurisdiction and the application of sovereign citizen terminology, which led to a dismissal of his legitimate concerns about the court’s authority and procedural conduct.•The judge did not properly address the legal principles under the Family Law Act 1975 (Cth), specifically the requirements for determining the best interests of the children in the context of the evidence presented by both parties.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground cannot succeed.CONCLUSION As the appellant has not established any appealable error the appeal must be dismissed. The respondent was unrepresented on the appeal. Neither the respondent nor the Independent Children's Lawyer sought orders for costs. As a result, I make no orders for costs.

Ratio Decidendi

Legal Principle Established

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