Sciacchitano & Zhukov
[2024] FedCFamC1A 224
•2 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Sciacchitano & Zhukov [2024] FedCFamC1A 224
Appeal from: Sciacchitano & Zhukov [2024] FedCFamC2F 1071 Appeal number: NAA 220 of 2024 File number: PAC 1584 of 2022 Judgment of: ALDRIDGE J Date of judgment: 2 December 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the primary judge found he could not determine what was in the three year old child’s best interest beyond six years of age – Where the primary judge did not fail to consider the prospect of further litigation – Construction of s 65DAAA – Where the orders accord with recommendations from the Court Child Expert such that the parties were on notice – No procedural unfairness – Claims the respondent’s evidence should not have been accepted – Where the outcome is not glaringly improbable or contrary to compelling inferences – Adequate reasons – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 60CC, 65DAAA Cases cited: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Melounis & Melounis(No 4) [2024] FedCFamC1F 778
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Rasheem & Rasheem [2024] FedCFamC1F 595
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Whitehill & Talaska [2024] FedCFamC2F 768
Number of paragraphs: 35 Date of hearing: 25 November 2024 Place: Sydney Counsel for the Appellant: Mr Connor Solicitor for the Appellant: One Law Group Pty Ltd Counsel for the Respondent: Ms Rebehy Solicitor for the Respondent: Hammond Nguyen Turnbull ORDERS
NAA 220 of 2024
PAC 1584 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SCIACCHITANO
Appellant
AND: MS ZHUKOV
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
2 DECEMBER 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the respondent’s costs fixed in the sum of $15,000 within 28 days.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sciacchitano & Zhukov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
This is an appeal from parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 8 August 2024. The orders provided for the parties’ child, who was born in January 2021, to live with the respondent mother and spend time with the appellant father, initially for eight hours each Saturday and gradually increasing to each alternate weekend, from after school Friday to before school Monday.
Orders placing the child on the Australian Federal Police Family Law Watchlist and a restraint on the respondent from removing the child from Australia were to remain in force until January 2027. The orders did not extend past that date because “[i]t is not possible with certainty, to project further into the future at this time, what will then be in [the child’s] best interest” (at [81]). His Honour recognised therefore if the parties could not further agree to vary the orders, then a further application for parenting orders would need to be made.
THE APPEAL
Grounds 1 & 2 – Did the primary judge err in failing to make final orders? And did his Honour thereby fail to afford procedural fairness to the appellant?
Contrary to the terms of Ground 1, no submissions were advanced in writing or orally that the orders were in fact interim orders. Clearly, they are not because they are not expressed to operate pending a final determination.
The appellant’s Summary of Argument submitted that the orders did not project past 2027 and, in particular, did not provide for school holiday time with the appellant contrary to the then provisions of s 60CC(3)(l) of the Family Law Act (1975) (Cth) (“the Act”). That subsection required the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. The failure to make such orders was said, inevitably, to lead to further litigation.
The fatal flaw in that argument is that the Court is not required to make orders that will avoid future litigation, but rather to ask “whether it would be preferable” to make the order that would least likely lead to further litigation when determining which orders should be made. As is apparent from the passage already quoted, his Honour did just that.
In the course of oral submissions, counsel for the appellant submitted that the terms of the order had the effect that the appellant would face the hurdle of having to demonstrate a relevant change in circumstances before he could seek orders as envisaged by the primary judge.
Counsel for the respondent sought to counter this, submitting that as a result of the enactment of s 65DAAA of the Act, a change in circumstances was no longer required before final parenting orders can be reconsidered. She relied on Rasheem & Rasheem [2024] FedCFamC1F 595 at [64]–[68]. See also, to similar effect, Melounis & Melounis (No 4) [2024] FedCFamC1F 778 at [75]–[77] and Whitehill & Talaska [2024] FedCFamC2F 768 at [12].
As the first decision expressly notes (at [59]), the clear express legislative intent for s 65DAAA was to codify the law as stated in Rice and Asplund (1979) FLC 90-725 which requires that there be such a change in circumstances as to warrant reconsideration of parenting orders.
This intention is clearly given effect by reading “consider” in s 65DAAA(1)(a) in its meaning of “to regard as or deem to be”, the second definition in the list of definitions of the word in the Macquarie Dictionary. Thus, the court must find a change in circumstances.
Such an approach, namely to look to the context of the words in the section itself, the Act as a whole and the evident purpose of the section rather than focus on the literal meaning of a word is the modern method of statutory construction (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
Further, if s 65DAAA did not require a finding that there had been a change of circumstances it would be otiose and the whole section pointless.
Also, it is not to the point that in a different section of the Act, in an entirely different context, the word “consider” means something else.
I therefore would have grave misgivings about following these decisions but do not need to come to a concluded view, and as I have not received submissions on the question, it does not need to be determined to resolve the appeal.
The passage of four years for a three year old child, in the context of the orders, will go a long way to establish a change in circumstances, even assuming everything else stays the same, which is unlikely. However, the future cannot be predicted and that is a matter for another day.
It follows that the premise for Ground 2, which is expressed as failing to give the appellant the opportunity to address proposed interim orders, is also not established.
The submissions on the appeal, again, did not adhere to the ground, but were that his Honour ought to have raised with the parties the question of not making orders beyond 2027. This misunderstands the effect of the orders. The regime for the child’s time with the appellant which commences in mid-January 2027 is not limited as to time and would remain in place unless varied either by agreement or as a result of further proceedings.
The real complaint is that no orders for school holiday time were made.
The Court and the parties had the benefit of a report written by a Court Child Expert who recommended that the child could commence overnight time with the appellant “on a gradually increasing basis culminating in alternate weekends, once [the child] is four years of age” (Family Report dated 10 May 2023, paragraph 66). No recommendation was made as to school holiday time.
In January 2027, the child will have just turned 6 years old. The question of school holiday time will either just have arisen (school having started when she was five years old) or will be about to arise. His Honour said that he could not, at this stage, determine what orders were in the child’s best interest past January 2027, other than those that were put in place. Again, that was a finding that was not challenged. Thus, the findings and orders made by the primary judge were along the lines of those proposed by the Court Child Expert. The parties had been on notice of those recommendations for some time prior to the hearing. They were therefore in play and there is no lack of procedural fairness on the part of the primary judge in making orders similar to them.
These grounds do not succeed.
Ground 3 – Were his Honour’s reasons inadequate?
A significant issue in the proceedings was whether family violence had occurred. Each party made strident allegations of violence at the hands of the other. His Honour dealt with it in this way:
61It is impossible to determine whether either parent perpetrated family violence. Both made graphic reference to the family violence they were subjected too [sic]. Both maintained the accounts recorded in their affidavits when cross examined and were unshaken in those accounts by that cross examination.
62As is often the situation in cases where family violence is said to have occurred, there is no definitive extrinsic evidence.
63The [respondent] has made some contemporaneous complaints to NSW Police and to workers at [a support organisation] but those complaints do not enable a finding on the balance of probabilities.
Again, the submissions did not address the ground as framed. Rather, the submission was that there were such difficulties with the respondent’s evidence (it being suggested for example that the respondent’s claims of sexual violence were false) that it should not have been accepted and that, at the least, the primary judge did not engage with the submissions that were made by the appellant.
In the course of submissions, I was taken to some isolated aspects of the evidence, such as one page out of a series of recordings made by the respondent. However, even those pages seen without the context in which they appeared, were equivocal. I am far from persuaded that I should conclude the respondent’s evidence had such difficulties that it should not have been accepted. That, however, is not the test. An appeals court cannot interfere with such a finding unless the outcome is said to be contrary to incontrovertible evidence, glaringly improbable or contrary to compelling inferences (Lee v Lee (2019) 266 CLR 129; Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550.
Of course, rejection of one party’s evidence does not require acceptance of the other party’s evidence.
It is implicit in the primary judge’s findings that his Honour rejected the appellant’s submissions as to the respondent’s credibility, or alternatively found that she was no more or less credible than the appellant. The finding that the respondent was “unshaken” in cross-examination is a rejection of the submission that her credibility was seriously undermined in her evidence.
The submissions made on appeal refer only to the respondent’s credibility and assert that his Honour did not deal adequately with the submissions that were made to him on that issue. However, as his Honour’s brief reasons make plain, he was not satisfied he could accept either parties’ evidence over that of the other. That would seem to involve some acceptance of the appellant’s submissions as to credibility.
In those circumstances his Honour’s reasons as to credibility can be seen as adequate. The content of reasons is determined by the nature of the issue being decided (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
This ground has not been established.
Ground 4
Ground 4 is simply a complaint that the primary judge misunderstood the orders sought by the appellant when his Honour said that the parties had agreed for the child “to live with [the respondent] and spend time with the [appellant]” (at [7]). The point was made that the appellant was ultimately seeking a week-about arrangement. I do not see any inconsistency.
Furthermore, the orders sought by the appellant at trial were introduced as “the child shall live with the [respondent] and spend time with the [appellant] as follows” (appellant’s Case Outline filed 28 February 2024, paragraph 10 of the precise minute of orders). Thus, the primary judge’s statement seems to accord with the appellant’s own phrasing.
Ground 5
Ground 5 is simply a complaint that the appellant’s case as to family violence should have been accepted, but did not advance any reasons other than those advanced under Ground 3.
Disposition
It follows that the appeal will be dismissed.
COSTS
Quite properly, counsel who appeared on the appeal did not suggest that an order for costs would be unjust if the appeal was to be dismissed.
The respondent’s Schedule of Costs includes some matters which ordinarily should not be included in costs on appeal, including printing of the Appeal Book (the Court conducts appeals electronically).
There will be an order that the appellant pays the respondent’s costs fixed in the sum of $15,000 within 28 days.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 2 December 2024
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