Traverso & Traverso

Case [2024] FedCFamC1A 225

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Traverso & Traverso [2024] FedCFamC1A 225

Appeal from: Traverso & Traverso (No 2) [2024] FedCFamC2F 960
Appeal number: NAA 210 of 2024
File number: BRC 12205 of 2022
Judgment of: ALDRIDGE J
Date of judgment: 2 December 2024
Catchwords: FAMILY LAW – APPEAL – Parenting – Where the respondent concedes one ground of appeal has merit – Where the Court must be satisfied of appealable error – Adequacy of reasons – Alleged failure to follow the legislative pathway – Weight – No appealable error identified – Appeal dismissed – No orders as to costs.
Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 61CA, 117
Cases cited:

Bellman v Peters [2020] VSCA 143

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

Bhatnagar & Riju [2018] FamCAFC 144

Bradken Ltd v v Norcast S.ár.L (2013) 219 FCR 101; [2013] FCAFC 123

Citigroup Pty Ltd v Mason (2008) 171 FCR 96; [2008] FCAFC 151

Dailymail.com Australia Pty Ltd v Molan [2023] FCAFC 26

Endresz v Commonwealth of Australia (No 2) [2019] FCAFC 223

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

Gerard & Santino [2024] FedCFamC1A 218

Greer & Shui (No 2) [2023] FedCFamC1A 8

Harris & Dewell(No. 2) (2018) FLC 93-863; [2018] FamCAFC 180

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

Hill & Weston [2022] FedCFamC1A 98

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

Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Melbourne Water Corporation v Caligiuri (2020) 60 VR 462; [2020] VSCA 16

Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

Sabrige & Sabrige [2018] FamCAFC 250

Scarlett & Bradshaw [2019] FamCAFC 184

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

Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64; [2008] FCAFC 7

United Voice v MSS Security Pty Ltd (2016) 153 ALD 200; [2016] FCAFC 124

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Number of paragraphs: 47
Date of hearing: 12 November 2024
Place: Sydney
Counsel for the Appellant: Mr Trout
Solicitor for the Appellant: Browns Lawyers
Counsel for the Respondent: Mr Kelly
Solicitor for the Respondent: Paddington Lawyers & Attorneys

ORDERS

NAA 210 of 2024
BRC 12205 of 2022

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

MR TRAVERSO

Appellant
AND:

MS TRAVERSO

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

2 DECEMBER 2024

THE COURT ORDERS THAT:

1.The 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…

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AGLC
Traverso & Traverso [2024] FedCFamC1A 225
Case
[2024] FedCFamC1A 225
Decision Date

CaseChat Overview and Summary

The matter of Traverso & Traverso was an appeal against parenting orders made in the Federal Circuit and Family Court of Australia. The appellant, Mr Traverso, challenged the orders on several grounds, including the weight of the evidence, the adequacy of reasons, and the alleged failure to follow the legislative pathway. The respondent, Ms Traverso, conceded that one of the grounds of appeal had merit, but the court had to be satisfied that there was appealable error. The court was tasked with determining whether the primary judge made an error in exercising his discretion in relation to the parenting orders.

In assessing the grounds of appeal, the court considered whether there was any error in the exercise of discretion by the primary judge. The court noted that it was not enough for the appellate court to consider that it would have taken a different course if it had been in the primary judge's position. Instead, the court had to identify some error in the exercise of discretion, such as acting upon a wrong principle, allowing extraneous matters to guide the decision, or failing to take into account some material consideration. The court also noted that if the primary judge's decision was unreasonable or plainly unjust, the appellate court could infer that there had been a failure to properly exercise the discretion.

After reviewing the evidence and submissions, the court found that the primary judge had considered the relevant matters in reaching his decision. The court dismissed the appeal as it could not identify any appealable error in the exercise of discretion by the primary judge. The court also noted that the appellant's counsel had accepted that the respondent had a more intimate knowledge of the children's needs, and that the parties' communication was poor. These were the matters relied upon by the primary judge in finding the order for parental responsibility. The court concluded that the appeal did not succeed and dismissed it with no orders as to costs.

The court's decision in Traverso & Traverso highlights the importance of identifying appealable error in an appeal against a discretionary decision. The court emphasised that it was not enough for the appellate court to consider that it would have taken a different course if it had been in the primary judge's position. Instead, the court had to identify some error in the exercise of discretion, such as acting upon a wrong principle, allowing extraneous matters to guide the decision, or failing to take into account some material consideration. The court also noted that if the primary judge's decision was unreasonable or plainly unjust, the appellate court could infer that there had been a failure to properly exercise the discretion. In this case, the court found that the primary judge had considered the relevant matters in reaching his decision, and dismissed the appeal with no orders as to costs.

Orders

Orders of the court

NAA 210 of 2024

BRC 12205 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR TRAVERSO

Appellant

AND:

MS TRAVERSO

Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

2 DECEMBER 2024

THE COURT ORDERS THAT:

1. The 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

This ground does not succeed. Was the decision as to parental responsibility not supported by the weight of the evidence? (Ground 3) The very terms of this ground invite the Court hearing the appeal to consider the evidence for itself and substitute its view of the weight of the evidence. That is not an available course. This is an appeal from a discretionary decision and the following statement of principles apply (House v The King (1936) 55 CLR 499 at 504–505):…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred… The appellant submitted, despite the terms of the ground, that the following matters were not considered by the primary judge:·The parties were able to agree on a number of significant parenting orders during the course of the hearing;·The orders included a process for resolving disputes about the terms and operation of the orders which included resort to a low-fee dispute resolution service;·The parties were able to agree on the appellant spending time at the hospital with one of the elder children who had been seriously injured playing sport;·The respondent had made poor decisions about vaccinations and changes of residence and schools for the children. It must be noted that counsel for the appellant who appeared on the appeal properly accepted that the respondent did have a more intimate knowledge of the children’s needs, the appellant had a limited relationship with the youngest child and that the parties’ communication was poor. These were the matters relied upon by his Honour in finding the order for parental responsibility. The third bullet point may immediately be put aside as it was directly noted at [8] and said to be to the credit of both parties. The negotiations and agreement during the hearing (the first and second bullet points) were recorded at [22]–[23]. The appellant did refer to a change of residence by the respondent which he described in his submissions as “deceptive, secret and clandestine” (appellant’s Submissions in Reply filed 28 May 2024, paragraph 7). The complaint was that the decision was taken by the respondent on her own without telling the appellant. He did not suggest, as is now his position, that it was a wrong decision.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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