Sarkozy & Sarkozy (No 3)

Case [2024] FedCFamC1A 178

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Sarkozy & Sarkozy (No 3) [2024] FedCFamC1A 178

Appeal from: Sarkozy & Sarkozy [2024] FedCFamC1F 338
Appeal number: NAA 148 of 2024
File number: SYC 4887 of 2021
Judgment of: AUSTIN, WILLIAMS & SCHONELL JJ
Date of judgment: 10 October 2024
Catchwords: FAMILY LAW – APPEAL – Where the mother appeals from final parenting orders – Where the orders provide for the children to spend confined time with the mother once every three months under supervision – Where the mother does not make clear the nature of the alleged bias by the primary judge – Where the alleged prejudgement by the primary judge of the mother’s mental health is rejected – Where the refusal of the mother’s adjournment application neither constituted nor resulted in her denial of procedural fairness – Where the complaint of factual errors lack specificity and are rejected – Where the complaint of discretionary errors is rejected – Where the complaint of inadequate reasons is not addressed in the Summary of Argument and is rejected – Appeal dismissed – Where the father did not seek an order as to costs – Where the mother’s penury precludes any costs order against her in favour of the Independent Children’s Lawyer – No order as to costs.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 102NA, 117

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

Cases cited:

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7

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

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

National Companies and Securities Commission v News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419; [2023] HCA 15

Sarkozy & Sarkozy [2024] FedCFamC1A 172

Sarkozy & Sarkozy (No 2) [2024] FedCFamC1A 176
Number of paragraphs: 60
Date of hearing: 1 October 2024
Place: Sydney
The Appellant: Litigant in person
Solicitor Advocate for the Respondent: Mr Chegwidden
Solicitor for the Respondent: Graham Chegwidden Solicitor and Barrister
Counsel for the Independent Children's Lawyer: Mr Livingstone
Solicitor for the Independent Children's Lawyer: Marsdens Law Group

ORDERS

NAA 148 of 2024
SYC 4887 of 2021

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

MS SARKOZY

Appellant
AND:

MR SARKOZY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, WILLIAMS & SCHONELL JJ

DATE OF ORDER:

10 OCTOBER 2024

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 18 June 2024 is dismissed.

2.The application for costs made by the Independent Children’s Lawyer against the appellant 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)

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Details
AGLC
Sarkozy & Sarkozy (No 3) [2024] FedCFamC1A 178
Case
[2024] FedCFamC1A 178
Decision Date

CaseChat Overview and Summary

In the appeal of Sarkozy & Sarkozy (No 3), Ms. Sarkozy, the mother, appealed against final parenting orders made in favour of Mr. Sarkozy, the father, concerning the two youngest children born from their marriage. The appeal was dismissed by the Federal Circuit and Family Court of Australia. The central issue in the appeal was whether the primary judge's decision to limit the children's time with the mother to supervised visits once every three months was appropriate, given the mother's claims of bias and procedural unfairness.

The court examined several grounds of appeal, including the mother's allegations of bias by the primary judge, which were deemed insufficiently specific to warrant a successful challenge. The court also rejected the mother's claim that the primary judge had prejudged her mental health, finding that the decision was based on expert psychiatric evidence. Furthermore, the refusal of the mother's adjournment application was found not to constitute or result in a denial of procedural fairness. The court found no merit in the mother's complaints about factual errors, discretionary errors, or inadequate reasons. The appeal was dismissed as the mother failed to substantiate her claims effectively.

In its orders, the court dismissed the mother's notice of appeal and the application for costs made by the Independent Children's Lawyer against the mother. The father did not seek an order as to costs, and the mother's financial situation precluded any costs order in favour of the Independent Children's Lawyer. Consequently, no order as to costs was made.

Orders

Orders of the court

NAA 148 of 2024

SYC 4887 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SARKOZY

Appellant

AND:

MR SARKOZY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, WILLIAMS & SCHONELL JJ

DATE OF ORDER:

10 OCTOBER 2024

THE COURT ORDERS THAT:

1. The Notice of Appeal filed on 18 June 2024 is dismissed.

2. The application for costs made by the Independent Children’s Lawyer against the appellant 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).

Background

Background to the litigation

The appeal is dismissed for the following reasons.BACKGROUND The parties were married in 1997 and separated in March in 2021. They have five children. The three eldest children had attained their majority by the time the parties separated and departed the former family home of their own accord at or about that time. Upon separation, the father vacated the family home and took the two youngest children (“the children”) with him. The children were born in 2011 and 2014 and are now aged 13 and 10 years respectively. Not long after the parties’ separation, the father and the children returned to live at the family home but, following the mother choking one child soon afterwards, he and the children again moved elsewhere. Later, in June 2021, the police issued a provisional family violence order against the mother for the protection of the child she assaulted. Proceedings under Pt VII of the Act were commenced by the father contemporaneously with the family violence order being made against the mother. Interim orders were made in July 2021 providing for the children to live with the father, but the orders intentionally made no provision for them to either communicate or spend time with the mother. The orders restrained the mother from telephoning the children and from entering the father’s residential premises. No other interim orders were made as the litigation progressed to trial. In October 2023, the proceeding was listed for trial in April 2024 and procedural directions were made to ensure the parties’ readiness for hearing. By March 2024, only a week before the trial was due to start, the mother was still in default of the procedural directions and her lawyers applied to vacate the trial (at [8]), which application was dismissed (at [9]). Then, at the start of the trial, the mother’s lawyers were granted leave to withdraw their representation of her and so she represented herself thereafter (at [10]). The mother was unsurprised by those developments. She was informed by her lawyers several days in advance of the trial of their intention to terminate the retainer and so she prepared and filed her own Case Outline document and “extensive affidavit” before the trial started. As the trial began, she tendered numerous exhibits, though some documents she tendered were rejected for reasons explained by the primary judge (at [11]). During the trial, the mother challenged the single expert psychiatrist’s opinion evidence in cross-examination (at [12] and [37]) and she made final submissions to the primary judge once the evidence was closed. It is evident from the reasons for judgment that the primary judge was motivated to accept and act upon expert opinion evidence given by the single expert psychiatrist (at [41]). In his report, the single expert opined the mother was suffering from a “[mental health disorder]” which was “fuelling her erratic behaviour” and caused her to pose “an unacceptable risk [of harm]” to the children (at [3], [38] and [39]).

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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