Quintana & Konigsmann

Case [2025] FedCFamC1A 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Quintana & Konigsmann [2025] FedCFamC1A 30

Appeal from: Konigsmann & Quintana (No 2) [2024] FedCFamC1F 567
Appeal number: NAA 246 of 2024
File number: BRC 14498 of 2020
Judgment of: ALDRIDGE, WILSON & CAMPTON JJ
Date of judgment: 4 March 2025
Catchwords: FAMILY LAW – APPEAL – Where the father appeals from final parenting orders – Where the father asserts that the primary judge failed to consider the relevant legislation, made “wrong” findings of fact, and failed to make findings of fact – Adequacy of reasons – Where the primary judge undertook a methodical evaluation of the evidence and cogent considerations of the relevant legislation – Where no ground of appeal has merit – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer.
Legislation:

Family Law Act 1975 (Cth) ss 60CA, 60CC and 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A 69

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

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

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

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Haward & Haward (2023) FLC 94-147; [2023] FedCFamC1A 99

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

Helbig & Rowe [2016] FamCAFC 117

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

Kohan and Kohan (1993) FLC 92-340; [1992] FamCA 116

Koyroyshs & Koyroyshs [2021] FedCFamC1A 54

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Robinson Helicopter Co Incv McDermott (2016) 331 ALR 550; [2016] HCA 22

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

U v U (2002) 211 CLR 238; [2002] HCA 36

Wei & Xia (2024) FLC 94-186; [2024] FedCFamC1A 65

Willmore & Menendez [2022] FedCFamC1A 73

Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs: 84
Date of hearing: 12 December 2024
Place: Heard in Brisbane, delivered in Sydney
Counsel for the Appellant: Mr Bunning
Solicitor for the Appellant: Wallace Perkins Family Law
Counsel for the Respondent: Ms Pendergast
Solicitor for the Respondent: Parry Coates Family Law
Counsel for the Independent Children’s Lawyer: Ms Eviston
Solicitor for the Independent Children’s Lawyer: Aylward Game Solicitors

ORDERS

NAA 246 of 2024
BRC 14498 of 2020

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

MR QUINTANA

Appellant
AND:

MS KONIGSMANN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, WILSON & CAMPTON JJ

DATE OF…

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Quintana & Konigsmann [2025] FedCFamC1A 30
Case
[2025] FedCFamC1A 30
Decision Date

CaseChat Overview and Summary

The father, Mr Quintana, appeals against final parenting orders made by the primary judge in the Federal Circuit and Family Court of Australia. The mother, Ms Konigsmann, and the Independent Children’s Lawyer (ICL) have filed a cross-appeal in relation to certain aspects of the orders. The appeal and cross-appeal raise issues concerning the adequacy of the primary judge’s reasons, the interpretation of statutory provisions, and the weight given to certain evidence. The primary judge had ordered that the children live with the mother and spend supervised time with the father.

The court examined several grounds of appeal and cross-appeal, including whether the primary judge adequately considered the relevant legislation, made erroneous findings of fact, and failed to make certain findings of fact. The father argued that the primary judge did not properly consider the statutory provisions and made errors in weighing evidence. The mother and the ICL argued that the primary judge should have made different findings concerning the children's welfare and the appropriate parenting arrangements.

The court found that the primary judge had undertaken a methodical evaluation of the evidence and provided cogent reasons for her conclusions. The court held that the primary judge had considered all relevant statutory provisions and made appropriate findings of fact. The court found no merit in the father's arguments concerning the weight given to certain evidence and the adequacy of the reasons provided by the primary judge. The court also rejected the mother's and the ICL’s arguments concerning the proposed parenting arrangements.

The court dismissed both the appeal and the cross-appeal. It ordered the father to pay the costs of the mother and the ICL within 28 days. The court concluded that the primary judge’s orders were appropriate and that no grounds of appeal or cross-appeal had merit. The decision underscores the importance of thorough and reasoned decision-making in parenting cases, where the welfare of the children is paramount.

Orders

Orders of the court

NAA 246 of 2024

BRC 14498 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR QUINTANA

Appellant

AND:

MS KONIGSMANN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE, WILSON & CAMPTON JJ

DATE OF ORDER:

4 MARCH 2025

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. Within 28 days, the appellant pay the costs of the respondent fixed in the sum of $20,022 and the costs of the Independent Children’s Lawyer fixed in the sum of $14,044.

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

For the reasons that follow, the appeal is dismissed.BACKGROUND The father was born in 1977 in Country J and is currently 47 years old. The mother was born in 1976 in Country F and is currently 48 years old. The mother often speaks to the children in Country F language. Both the mother and father are now Australian citizens. On 19 October 2020 the father commenced financial and later parenting proceedings in what was then the Federal Circuit Court of Australia. In or around early May 2021, prior to the consent orders made 12 August 2021, the mother said Y made a disclosure to her as to sexual abuse perpetrated by the father. In April 2022 the mother re-partnered with Mr H. They do not cohabit on a full-time basis. Mr H has three children of a previous relationship, who were 23 years old (twins) and 17 years old at the time of the trial. The mother alleges that during January 2023 Y made a second and a third disclosure as to sexual abuse perpetrated by the father. From 23 January 2023 the mother withheld the children from spending time with the father. On 9 February 2023 she recommenced parenting proceedings in the Federal Circuit and Family Court of Australia (Division 2). On 2 March 2023 an order was made referring the matter to the National Assessment Team for transfer to the Federal Circuit and Family Court of Australia (Division 1). On 15 May 2024 an order was made amending the order on 2 March 2023 to include a transfer order. In May 2023 the Queensland Police Service finalised their investigation into the allegations raised by the mother. They concluded that there was insufficient evidence to proceed with a criminal prosecution of the father. On 13 July 2023 consent orders were made suspending the father’s time with the children. In August 2023 the Department of Child Safety, Seniors, and Disability Services (“Child Safety”) finalised their investigation. They concluded that Y had suffered emotional harm from sexual abuse perpetrated by the father. On 19 September 2023 orders were made pending further order for the children to live with the mother and spend time with the father at a supervised contact centre for up to four hours each week. An order was made for the mother to personally supervise the children when they were in the care of Mr H. On 23 September 2023, supervised time commenced between the father and the children. On 18 February 2024 the Family Report of Ms D was released. In or about April or May 2024 the father re-partnered with Ms K. They do not live together.The allegations as to sexual abuse perpetrated by the father The mother’s evidence was that the child, Y, had made three disclosures to her as to sexual abuse perpetrated by the father. They were:(a)In or around early May 2021 Y said “Daddy touched my private parts” and X said that the father slept in her bed and asked X to sleep in another room;(b)In January 2023 Y again said “Daddy touched my private parts”, and when the mother asked, “What happened? Please tell me the truth, I am here and you tell me anything you want”, Y responded, “I trick you mummy”; and(c)In January 2023 Y said “my [Country F language for vagina] is sore”. When the mother suggested that the sandpit at daycare could cause such pain, Y responded “no Daddy touched me again”. Further, Y said “[X] doesn’t see it”, because “Daddy tell him to go away”.

Evidence

Evidence Before The Court

The finding relevant to this ground is:62 At 4.28 pm, i.e., about 40 minutes after arriving home with the children, the mother sent the father a screen shot of a text message sent by the father to the mother on 6 November 2021, “dinner time nanny” and a text that said, “when karma hits you back” accompanied by three laughing emojis. As best I can understand the father’s case, he contends firstly that the mother could not have been concerned about Y making a “disclosure” only 40 minutes before sending him such a text and secondly, that the reference to “karma” was an indication that the mother thought she had evidence against him that she could use to stop him seeing the children. The mother could not recall sending the text message and did not know what she meant by the screen shot and text. By way of possible explanation, the mother offered that as the father used to call her “nanny” as an insult because she is one year older, it might have been a reference to his new relationship with the nanny. The mother rejected the contention that the reference to “karma” was in any way related to the child’s “disclosure”. I accept the mother’s evidence that the reference to “karma” was not related to the child’s “disclosure”. (Emphasis added) The asserted error was that the primary judge did not make any finding as to what the use of the word “karma” included. The import of the complaint is that the use of the word “karma” by the mother implies a finding of malice such that she would manufacture allegations of sexual abuse against the father to restrict his relationship with the children. It was open to the primary judge to accept the mother’s explanation for use of the word as credible in that it was not a reference to the child’s disclosure. The father’s contention on the subject matter was not accepted. This finding was open and was not glaringly improbable (Robinson Helicopter Co Incv McDermott (2016) 331 ALR 550). The ground fails.Ground 3 – “In relation to the learned Judge’s finding at paragraph 58 about the [mother] not questioning the child and the finding that she had was given no weight by the learned Judge causing her to fall into error.”Ground 5 – “The Reasons are insufficient in relation to the recitation of Dr [M]’s continued involvement in the matter and the Reasons do not identify what weight (if any) is placed on the recitation of evidence at paragraphs 87-89 of the Reasons.” The onus is on the appellant to identify with precision in the ground the error of the type identified in House. The father submitted that these grounds are self-explanatory as to the type of error. They are not. In so far as each ground makes complaints as to the giving of any, and if so what, weight to matters of fact is quintessentially for the determination of the primary judge (Gronow). At the hearing of the appeal the father did not demur from the conclusion that any weight challenge asserted by these grounds in this appeal must fail. That an appellate court may have given them some, less, or more, weight does not establish error of the kind identified in House, unless the outcome is unreasonable or plainly unjust, which is not the case here (Hedlund & Hedlund (2021) FLC 94-065 at [37]). The weight challenge by each of Grounds 3 and 5 fails.

Decision

Reasons for decision

The proposals of each of the father, the mother, and the ICL at the trial recorded in the reasons were:7 It is common ground that the children should continue to live with the mother although the father is seeking an order that the children live with him for 12 weeks to repair his relationship with them and then return to live with the mother.8 The mother’s primary position is that she should have sole decision making responsibility for all major long-term issues and that the children should not spend any time with the father. The particulars of the order sought by the mother, including in the alternative, are set out in her Amended Initiating Application filed 28 June 2024.9 The father proposes that the children live with him for 12 weeks and then return to live with the mother. During the 12 weeks living with him, the father proposes that the children spend time with the mother and after they return to live with the mother, the father proposes that the children spend five nights per fortnight with him being from Friday to the following Wednesday. The particulars of the order sought by the father are set out in exhibit 15.10 The Independent Children’s Lawyer (“ICL”) recommends that the children live with the mother and spend unsupervised alternate weekends and half school holidays with the father after a prolonged reintroduction period. The order proposed by the ICL is set out in exhibit 13. Notwithstanding the recommendations made by the ICL, it was conceded that it would be open on the evidence to find that the father poses an unacceptable risk of sexual harm to the child, Y. THE CONCLUSIONS OF THE PRIMARY JUDGE The reasons record:103 Y has made repeated statements that the father has touched her private parts and that it hurts. She has made these statements suggestive of sexual abuse to the mother, to Dr M, to X, to Mr H, to police, to Child Safety and to the family report writer, Ms D. It is of significance that X has said that the father would tell him to leave the room or lock him out of the bedroom when he was in there with Y. …105 Ms D helpfully identifies in her report the difficulties in assessing the accuracy of statements by young children in a context of family conflict in circumstances where a child may have been subjected to repeated questioning as may have occurred in this case at least after the 2021 statements…106…In her view, the children have been exposed to considerable parental conflict and are strongly aligned with the mother. The primary judge found:107…I further reject Ms D’s opinion that the mother has had difficulty considering or accepting information that did not confirm her own beliefs that the children were at risk in the care of the father and with accepting outcome of the police investigation.108 …While the mother’s actions in questioning and then recording the child on the toilet on January 2023 were ill advised, the questions posed by the mother suggested alternatives to the child other than sexual harm. In my view, the mother was very much open to receiving information that challenged her concern about sexual abuse.109 …I do not consider it at all unreasonable for the mother to maintain her concerns despite the police conclusion that there was insufficient evidence for criminal prosecution.110 I reject Ms D’s opinion that the mother has overanalysed, or pathologised the children's behaviours as being more significant than the reality. Understandably, the mother feels considerable guilt about ignoring, as she sees it, the 2021 statements when they have re-emerged in 2023. The mother acted entirely appropriately in 2021. She received information that was concerning, and she immediately raised it with the father. She was prepared to accept that what the child said should be considered in the context of the father providing day to day care to the child.

Ratio Decidendi

Legal Principle Established

It is appropriate to adopt the sequence of consideration of the grounds as taken by father at the hearing of the appeal.Ground 1 – “Whist [sic] the learned Judge referred to Section 60CC of the Act at paragraph 34 of the Reasons and identified at paragraph 44 that she had considered each of the sections of the Act, the Reasons of the learned Judge are insufficient and the learned Judge’s consideration of the law is in error where: a. There is no separate identification in the Reasons of the consideration of the sections of the Act, as set out in paragraphs 29-44 of the Reasons, b. The Reasons therefore do not identify and are insufficient in so far as they do not identify the consideration of the relevant sections of the Act, c. The learned Judge further failed to separately evaluate each of the parties’ proposals, which led to her to err in law.” The father concedes that the reasons identify applicable legal principles as to the determination of the parenting dispute (at [29]–[43]), including reciting the considerations contained in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) (at [34]). The first and second sub-grounds can be quickly determined. The primary judge explicitly said:44 Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.(Footnote omitted) Notwithstanding the plain language of the complaint in sub-ground 1(a), the father conceded during the hearing of the appeal that it is not necessary for reasons to record a formulaic recital of each factor contained in s 60CC of the Act (SCVG & KLD (2014) FLC 93-582; Willmore & Menendez [2022] FedCFamC1A 73 at [93] and the cases cited therein). The sub-ground was always misconceived, having no merit. The father submitted that “whilst the learned Judge set out that [they] had considered all sections of the Act when making [their] determination, nowhere in [the] judgment does [the primary judge] consider anything other than the issue of risk as asserted by each of the parties” (italicised emphasis added) (father’s Summary of Argument filed 8 November 2024, paragraph 19). This submission was inaccurate, the primary judge making a plethora of findings as to each cogent and determinative s 60CC consideration. The Full Court has said “[p]rovided 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” (Oswald & Karrington (2016) FLC 93-726 at [48]). Sub-ground 1(b) fails. The father’s Summary of Argument as to an insufficient reasons complaint in sub-ground 1(c) said:24.In that regard, it is submitted that the learned Judge failed to separately and properly consider each party's case and the relevant section 60CC factors that underpin it. The learned Judge instead determined the Respondent’s risk case and then found (as set out above) what following was a rejection of the Appellant’s risk case. There was no separate consideration of the competing proposals.25. In that regard the Full Court in Banks said the following (my emphasis):‘Paragraph 25 – It is fundamental in every parenting case that the parties’ proposals be clearly identified. This is so, because it is an essential requirement that each proposal be subject of separate evaluation (AMS v AIF (1999) CLR 160 at 191 [95] per Gaudron J at 226 [196] per Kirby J at 232 [218]-[219] per Hayne J; U v U [2002] HCA 36; (2002) 211 CLR 238 at 248 [37] per Gaudron J’