Shell & Armel

Case [2022] FedCFamC1A 83

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Shell & Armel [2022] FedCFamC1A 83

Appeal from: Armel & Shell [2021] FedCFamC2F 317
Appeal number(s): NAA 64 of 2021
File number(s): SYC 1436 of 2017
Judgment of: AUSTIN, SCHONELL & STRUM JJ
Date of judgment: 3 June 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – CHANGE OF RESIDENCE – Appeal from final parenting orders giving the father sole parental responsibility and changing the residence of the children from the mother to the father due to concerns of alienation – Whether there was a denial of procedural fairness – Whether the primary judge erred in findings of fact – Where the primary judge relied on an academic article that was not admitted into evidence – Appeal allowed on one ground only – Where the primary judge made an error of law in relying on the article that had not been admitted into evidence – Proceedings remitted for re-hearing – Costs certificate issued for the Appellant and Respondent.
Legislation:

Evidence Act 1995 (Cth) s 144

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 69ZT, 69ZX

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Cases cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47

Amador v Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

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

Bell & Nahos [2016] FamCAFC 244

Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Donaghey v Donaghey (2011) 45 Fam LR 183; [2011] FamCA 13

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

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

M v M (1988) 166 CLR 69; [1988] HCA 68

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

McGregor & McGregor (2012) FLC 93-507; [2012] FamCAFC 69

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

SCVG & KLD [2011] FamCAFC 100

SSHontestroom v SS Sagaporack [1927] AC 37

Wheldon v Dinh [2010] FamCA 740

Zantiotis & Zantiotis (1993) FLC 92–367; [1993] FamCA 32

Kelly, Joan B & Johnston, Janet R “The Alienated Child: A Reformulation of Parental Alienation Syndrome” (2001) 39 Family Court Review 240

Number of paragraphs: 77
Date of hearing: 4 March 2022
Place: Sydney (via video link), delivered in Melbourne
Counsel for the Appellant: Mr Duane
Solicitor for the Appellant: Penmans Solicitors
Counsel for the Respondent: Ms Ticehurst
Solicitor for the Respondent: Sullivan Legal Solutions
Counsel for the Independent Children's Lawyer: Ms McMahon
Solicitor for the Independent Children's Lawyer: Legal Aid Gosford

ORDERS

NAA 64 of 2021
SYC 1436 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION…

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Shell & Armel [2022] FedCFamC1A 83
Case
[2022] FedCFamC1A 83
Decision Date

CaseChat Overview and Summary

This appeal concerns parenting orders made in relation to the twin children of the relationship of the parties. The appeal was brought by the mother, who sought sole parental responsibility and that the children live with her. The father sought sole parental responsibility and that the children live with him. The Independent Children's Lawyer ("ICL") also made submissions to the Court. The legal issues before the Court were whether the primary judge erred in his findings of fact and whether there was a denial of procedural fairness. The Court found that the primary judge made an error of law in relying on an academic article that had not been admitted into evidence. The Court held that the appeal must be allowed, albeit only on one ground, and that the proceedings should be remitted for re-hearing by a judge other than the primary judge. The Court also granted costs certificates to both the appellant mother and the respondent father.

The Court found that the primary judge made an error of law in relying on an academic article that had not been admitted into evidence. The Court held that the reliance on the article was not a sound basis for making findings of fact and that the primary judge's reliance on the article was a denial of procedural fairness. The Court found that the primary judge's findings of fact were not supported by the evidence and that the primary judge erred in his findings of fact. The Court found that the primary judge did not adequately consider the evidence of the mother and that the primary judge's findings of fact were not supported by the evidence. The Court found that the primary judge's findings of fact were not supported by the evidence and that the primary judge erred in his findings of fact.

The Court held that the appeal must be allowed, albeit only on one ground, and that the proceedings should be remitted for re-hearing by a judge other than the primary judge. The Court held that the primary judge made an error of law in relying on the academic article that had not been admitted into evidence and that the primary judge's reliance on the article was not a sound basis for making findings of fact. The Court held that the primary judge's findings of fact were not supported by the evidence and that the primary judge erred in his findings of fact. The Court held that the appeal must be allowed, albeit only on one ground, and that the proceedings should be remitted for re-hearing by a judge other than the primary judge.

The Court granted costs certificates to both the appellant mother and the respondent father. The Court held that it would be appropriate for the Attorney-General to authorise payments under the Federal Proceedings (Costs) Act 1981 (Cth) to the appellant mother and the respondent father in respect of the costs incurred by them in relation to the re-hearing. The Court held that it would be appropriate for the Attorney-General to authorise payments under the Federal Proceedings (Costs) Act 1981 (Cth) to the appellant mother and the respondent father in respect of the costs incurred by them in relation to the re-hearing.

Orders

Orders of the court

NAA 64 of 2021

SYC 1436 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS SHELL

Appellant

AND:

MR ARMEL

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

AUSTIN, SCHONELL & STRUM JJ

DATE OF ORDER:

3 JUNE 2022

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The proceedings be remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing by a judge other than the primary judge.

3. Orders 1–12 of the orders made on 4 November 2021, as amended on 21 December 2021, be set aside as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth).

4. The appellant mother is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

5. The respondent father is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by him in relation to the appeal.

6. The Court grants to both the appellant mother and the respondent father costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant mother and the respondent father in respect of the costs incurred by them in relation to the re-hearing.

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 mother appeals from these orders. The appeal is opposed by both the father and the Independent Children’s Lawyer (“ICL”). For the reasons that follow, the appeal must be allowed, albeit only on one ground.BACKGROUND The parents commenced cohabitation in 2011 and separated finally in early to mid-2016. There are twin children of the relationship, X and Y, born in 2011, who are now 11 years of age (“the children”). At trial, the father sought orders for a change of the children’s residence, maintaining that such an order was necessary because the mother had alienated the children from him. The mother sought orders that the children live with her and spend no time with the father. It was common ground between the parties that the children were resistant to spending time with the father; the issue at trial being why this was so. The mother argued that this was a consequence of their realistic estrangement from the father due to family violence and abuse, to which she asserted they had been exposed. She denied that she had influenced the children in their attitude towards the father. Each parent sought sole parental responsibility for the children. At the conclusion of the evidence, the ICL sought orders, inter alia, that the father have sole parental responsibility for the children; that the children live with him; that the mother be restrained from spending any time with them for a period of 12 weeks; and that thereafter the children spend graduated, increasing time with her, culminating in alternate weekends. Following separation, the children lived with the mother and generally spent time with the father one day on the weekend. However, the mother’s case was that, by September 2016, the children became increasingly resistant to spending time with the father and that changeovers were extremely traumatic for all involved. The father instituted these proceedings on 7 March 2017. Orders were made providing for the children to spend time, including overnight time, with the father. From January 2018, the time they spent time with him was in the company of the mother and did not include overnights, with the mother insisting that it occur in a public place. However, in January 2019, the parents and children travelled overseas together for a holiday. Notwithstanding the mother’s allegations of family violence and abuse, she saw fit to be in the presence of the father, both on this regular basis, as well as overseas. In late April 2019, the mother stopped attending the children’s time with the father. The primary judge founded that a pattern developed where she would deliver the children to changeover and the children would refuse to get out of the car stop, which her Honour described as a “tragi-comedy” (at [27]). On 14 August 2020, after the release of a Family Report, interim orders were made for the father to spend time with the children two hours per fortnight, professionally supervised, and for the parents and children to participate in family therapy. Further interim orders were subsequently made for him to spend time with them for two hours, once a month, with changeovers to occur at a shopping centre.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The trial commenced on 9 June 2021. Reasons for judgment were delivered on 4 November 2021 and amended on 21 December 2021.THE PRIMARY JUDGE’S REASONS FOR JUDGMENT The primary judge described the father’s case, in summary, as follows. He contended that, prior to separation, he had a close relationship with the children but, thereafter, the mother had caused them to become aligned with her, by engaging in behaviours, both inadvertently and deliberately, to disrupt his relationship with the children and to encourage them to reject him. The mother’s case was that the father was physically, emotionally and financially abusive, during and after the relationship, including to the children. It was her case that their resistance to spending time with him was a consequence of their lived experience and that she had done everything she could to support their relationship with him. The primary judge observed that the mother’s demeanour during the hearing was noteworthy and that her anger towards the father was evident from the witness box. Her Honour considered the evidence of her friend, Ms A, about two incidents where she said she witnessed the father being aggressive and abusive. Her Honour noted that “the mother [made] an enormous number of allegations against the father with respect to incidents that purportedly occurred during the relationship and following separation” and focussed on those incidents that were the subject of cross-examination (at [75]). In relation to the week in January 2019, in which the parents and children holidayed together overseas, her Honour said that was “an extraordinary decision by the mother to take the children on an overseas holiday with a man she asserts that both she and the children feared because of his violent and aggressive behaviour” (at [88]). A Family Report was prepared by a social worker and Regulation 7 Family Consultant dated 27 July 2020. The primary judge said:140.While stating it was ultimately a matter for the Court as to the primary cause of the children’s rejection of their father, the Family Consultant offered three possible hypotheses which she set out at paragraphs 151 to 153 of her report:[151]If the Court accepts the mother’s version of events that the father has engaged in harsh, punitive and cruel parenting toward the children and they have witnessed the father perpetrate family violence towards the mother then this would be consistent with the children being realistically estranged from the father. If the Court were to find this were to be the case then the mother’s proposal for the children to spend supervised time with the father would appear to be protective for the children and most consistent with their needs.[152]If the Court accepts the father’s version of events that he had a positive relationship with the children prior to the relationship breakdown, that he has not behaved in an abusive manner toward the children and that the mother has deliberately sought to disrupt his relationship with the children, then it would be of benefit for the children to have a relationship with him.[153]If the Court is of the view that both parents have contributed to the current situation then the Court will need to carefully consider how orders can be crafted to support the children in maintaining a safe and meaningful relationship with both parents.(As per the original)

Ratio Decidendi

Legal Principle Established

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