Raleigh & Pauley

Case [2025] FedCFamC1A 178

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Raleigh & Pauley [2025] FedCFamC1A 178

Appeal from: Pauley & Raleigh (No 2) [2025] FedCFamC2F 593
Appeal number: NAA 231 of 2025
File number: CRC 166 of 2023
Judgment of: ALDRIDGE J
Date of judgment: 25 September 2025
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders for the children to live with the father and spend fortnightly time with the mother – Where the father appeals against the order for the children to spend time with the mother – Where the mother cross-appeals against all the orders – Alleged failure to take into account relevant considerations – Challenges to weight – Adequacy of reasons – Where the primary judge’s reasons were finely nuanced – Where the outcome was not plainly wrong or unreasonable – No ground enjoys merit – Appeal and cross-appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 68B, 114UB
Cases cited:

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

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

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

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

George & George (2024) FLC 94-170; [2024] FedCFamC1A 15

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

Hickson & Matthew [2022] FedCFamC1A 161

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

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

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pickford & Pickford (2024) FLC 94-230; [2024] FedCFamC1A 249

Quintana & Konigsmann [2025] FedCFamC1A 30

Rafferty & Spencer (2016) FLC 93-710; [2016] FamCAFC 97

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

Xin & Qinlang (No 2) [2025] FedCFamC1A 132

Number of paragraphs: 87
Date of hearing: 1 September 2025
Place: Sydney
Counsel for the Appellant/Cross-Respondent: Ms Decle
Solicitor for the Appellant/Cross-Respondent: Park Avenue Family Law
Counsel for the Respondent/Cross-Appellant: Ms Conte-Mills
Solicitor for the Respondent/Cross-Appellant: Paladin Lawyers
Counsel for the Independent Children’s Lawyer: Mr Keserovic
Solicitor for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

NAA 231 of 2025
CRC 166 of 2023

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

MR RALEIGH

Appellant/Cross-Respondent
AND:

MS PAULEY

Respondent/Cross-Appellant

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

25 SEPTEMBER 2025

THE COURT ORDERS THAT:

1.The Application in an Appeal filed 30 July 2025 and the Amended Application in an Appeal filed 22 August 2025 are dismissed.

2.The appeal is dismissed.

3.The cross-appeal is 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…

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AGLC
Raleigh & Pauley [2025] FedCFamC1A 178
Case
[2025] FedCFamC1A 178
Decision Date

CaseChat Overview and Summary

The appeal and cross-appeal in this matter concerned the final parenting orders made in relation to two children, X and Y, following the separation of their parents, Mr Raleigh and Ms Pauley. Mr Raleigh appealed the orders that the children live with him and spend fortnightly time with Ms Pauley, while Ms Pauley cross-appealed against all the orders, challenging the adequacy of the reasons and the weight given to various considerations. The primary judge's reasons were detailed and nuanced, taking into account the children's distress and their need for security and stability in their relationship with their mother. The primary judge found that the benefits of a relationship with the mother outweighed the risk of harm and that the children's relationship with the father might be affected by not spending time with the mother.

The court considered various grounds of appeal and cross-appeal, including whether the primary judge failed to consider relevant evidence, took into account irrelevant considerations, and whether the orders were unreasonable or plainly wrong. The court found that the primary judge's reasons were adequately nuanced and that no error was established under the grounds of appeal. The court found that the primary judge appropriately considered the children's views and the evidence of the Single Expert, who opined that the children had experienced emotional and psychological harm as a result of the change of primary residence. The court also found that the considerations taken into account by the primary judge were relevant and that the outcome was not plainly wrong or unreasonable.

The court dismissed both the appeal and the cross-appeal, finding that the primary judge's reasons were adequate and that the outcome was not plainly wrong or unreasonable. The appeal and cross-appeal were dismissed, and the orders made by the primary judge were upheld. The court found that the primary judge's reasons were finely nuanced and that the outcome was not plainly wrong or unreasonable. The appeal and cross-appeal were dismissed, and the orders made by the primary judge were upheld.

Orders

Orders of the court

NAA 231 of 2025

CRC 166 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR RALEIGH

Appellant/Cross-Respondent

AND:

MS PAULEY

Respondent/Cross-Appellant

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

25 SEPTEMBER 2025

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 30 July 2025 and the Amended Application in an Appeal filed 22 August 2025 are dismissed.

2. The appeal is dismissed.

3. The cross-appeal is 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

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Evidence

Evidence Before The Court

No error is established under these grounds.Did the primary judge fail to consider evidence in the risk of harm and the children’s grief and loss? (Grounds 4, 5(a), 5(i) and 6(e)) Ground 4 asserts that the primary judge failed to consider material evidence in her assessment of whether the children were at risk of harm. The only evidence referred to in the ground was that the children’s counselling sessions in 2023 and 2024 did not provide any support for the contention that the children were likely to experience any distress at not seeing their mother. Grounds 5(a) and 5(i) contend that the finding that the benefits of a relationship with the mother outweighed the risk of harm and that the children’s relationship with the father might be affected by not spending time with the mother were not open on the evidence. Ground 6(e) asserts inadequate reasons for finding that the children would suffer loss and grief by not seeing the mother. X was 11 years old when she spoke to the Single Expert clinical psychologist. She told him that she was missing the mother and was sad and angry about that. She said her sister misses the mother and cries about that a lot. She added that she felt closer to the mother and did not understand why she was not living mainly with her. Y was 8 years old at the time of the interviews. She too missed the mother and preferred to be living with her. She wanted things to go back to the way they were. The primary judge did not find the children’s views to be determinative but did take them into account. The Single Expert opined:278.Prior to the recent change of primary residence for the children, the children have been accustomed to experience the mother as their primary caregiver since their birth. It is very evident that the children perceive a strong sense of security and stability in their relationship with the mother and they view her as a loving, joyful and essential presence in their life. Unsurprisingly in this context, the change in primary residence is perceived as extremely confounding to the children and has seemingly created a profound sense of uncertainty, confusion, and distress for them.…282.An evaluation of how the change of primary residence has impacted the children and their adjustment to it is complicated by the fact that they have had regular access to the mother by phone at least since that time until very recently. Whilst this access to contact with the mother has likely mitigated against the impact of this change it is not considered that such mitigation has been overly effective. Despite this access of contact with the mother, the children are clearly experiencing a significant level of distress, confusion, and uncertainty in the context of their current living arrangements and restricted access to the mother. I fully concur with the mother’s assertion that the children have experienced emotional and psychological harm as a result of the change of primary residence, elements of how this unfolded, and the unknown state of what the future holds for them.(Single Expert Report dated 22 November 2023)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The father commenced with submissions on Grounds 2 and 7, under which it was asserted that the orders made by her Honour were unreasonable and plainly wrong. The submissions under those grounds were said to be informed and supported by the submissions under the remaining grounds, so it is convenient to deal with those two grounds last.Did the primary judge take into account irrelevant considerations? (Ground 1) At [203] of the reasons, the primary judge listed a number of matters that were taken into consideration in determining whether or not the risk of harm posed by the mother to the children was unacceptable or could be ameliorated in some way. It was submitted that items (h) and (i) “are not and could not be relevant to determining” that issue. Those two subparagraphs say:(h)I am satisfied that the mother does not intend to cause emotional and psychological harm to the children, and that her behaviour arises due to her lack of insight and understanding, and an inability to appropriately manage her emotions and her impulses.(i)The mother has demonstrated her capacity to provide for the day to day needs of the children over a long period of time leading up to the 2022 Final Orders, notwithstanding her over-valued ideas about diet and health. The appellant submitted that the issue of the mother’s intention could not be a factor that diminishes the likelihood of a recurrence of her poor behaviour. That may be so, but the paragraph was not limited to the topic of the likelihood of whether the poor behaviour would continue. As the introduction to [203] makes clear, the consideration was whether or not “the identified risks of harm are unacceptably high”. Subparagraph (h) is relevant to that issue because if the mother did intend to cause emotional and psychological harm to the children, that would be a very good reason indeed for the risk being unacceptably high and unable to be ameliorated in anyway. As to subparagraph (i), it is relevant to take into account a parent’s capacity to provide for the day to day needs of the children, especially in relation to someone whose parenting ability is in question, because the difficulties facing that parent may impact that ability. The considerations were clearly relevant to the overall issue and this ground does not succeed.Was the mother likely to continue to take steps to overcome her difficulties? (Grounds 3(g) and 6(c)) The heading belies a difficulty in the way the Notice of Appeal was framed and argued. Ground 3 is most unhelpfully framed in the alternative, being a list of factors that the primary judge is said to have failed to consider or failed to adequately consider. They are quite distinct errors of principle. One falls clearly within those enunciated in House v The King and the other does not. Failing to give adequate consideration to a matter has been regarded by this court for some time as being a submission in aid of an ultimate submission that the primary judge’s decision was unreasonable or plainly wrong and not otherwise (Hedlund & Hedlund (2021) FLC 94-065 at [37]; George & George (2024) FLC 94-170 at [42]; Quintana & Konigsmann [2025] FedCFamC1A 30 at [74]; Xin & Qinlang (No 2) [2025] FedCFamC1A 132 at [17]). The conflation with failure to consider is most unhelpful.