Traverso & Traverso
[2024] FedCFamC1A 225
•2 December 2024
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 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Traverso & Traverso 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 24 July 2024. The orders provided that Ms Traverso (“the respondent”) was granted sole decision-making for long-term parenting issues for the parties’ children. The youngest child was to live with the respondent and spend significant time with Mr Traverso (“the appellant”). Earlier consent orders had provided for the appellant’s time with the three eldest children.
The appeal is only against the order for parental responsibility. The Summary of Argument filed by the respondent concedes that “there is merit in [G]round 1” and proposes orders that the appeal be allowed and the question of parental responsibility be remitted for rehearing.
These reasons explain why I am not persuaded of any error on the part of the primary judge and will dismiss the appeal despite this concession.
It is now well established that, at least for federal courts, “the Court must be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appealable error” (Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64 (“Telstra Corporation”) at [51]).
Despite fairly trenchant criticism by a later Full Court (Citigroup Pty Ltd v Mason (2008) 171 FCR 96), the approach set out in Telstra Corporation was followed by this Court in Bhatnagar & Riju [2018] FamCAFC 144.
Telstra Corporation has now been consistently applied by the Federal Court of Australia (Commonwealth Bank of Australia v Walker (2012) 289 ALR 674; Bradken Ltd v Norcast S.ár.L (2013) 219 FCR 101; United Voice v MSS Security Pty Ltd (2016) 153 ALD 200; Endresz v Commonwealth of Australia (No 2) [2019] FCAFC 223; Dailymail.com Australia Pty Ltd v Molan [2023] FCAFC 26), the Court of Appeal in Victoria (Melbourne Water Corporation v Caligiuri (2020) 60 VR 462; Bellman v Peters [2020] VSCA 143) as well as this Court (Harris & Dewell (No. 2) (2018) FLC 93-863; Sabrige & Sabrige [2018] FamCAFC 250; Hill & Weston [2022] FedCFamC1A 98; Greer & Shui (No 2) [2023] FedCFamC1A 8).
There is no doubt as to the application of principle.
Did the primary judge give adequate reasons? (Ground 1)
The obligation to give adequate reasons is well known. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the following test (at 78,266):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will … be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR [2009] NSWCA 110, the principles were summarised as:
57.The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice.
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties’ cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted… it is necessary that the primary judge “ ‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
As to parental responsibility, the primary judge said:
46The [appellant] has a very limited relationship with [W], that is developing.
47 He has spent limited time with [W].
48By training and experience in their respective professions, both parents are decision makers.
49There is no doubt both could undertake parental decision making referrable to long term issues relating to the children.
50The [respondent’s] more intimate knowledge of the needs of the children, since the parents [sic] separation, the [appellant’s] limited relationship with [W], and the parents [sic] poor communication, means it is in each child’s best interest that she have sole decision making responsibility for long term issues relevant to the children. Further, the times that the [appellant] spends with the older three children will limit his ability to keep up to date with the educational needs.
The reasoning is clearly apparent. I do not accept the submissions to the contrary.
The appellant submitted:
7.The appellant has not been provided sufficient reasons or discussion to understand how the Judge made his decision to grant the [respondent] sole parental responsibility. The court should have explained why this father, a [member of the Australian Defence Force] with no protection order in place will have no input into the making of his children’s long-term decisions. His evidence disputes the allegations of the [respondent]. The [appellant] has been denied knowledge of why his case was rejected.
(Appellant’s Summary of Argument filed 25 September 2024)
The answer lies in the above paragraphs – the appellant had the ability to be involved in long-term decision-making, but the respondent’s greater knowledge of the needs of the children and the poor communication between the parties pointed in the opposite direction.
The appellant submitted that “the primary judge did not undertake the necessary analysis of the [appellant’s] conduct and evidence to determine whether it satisfied that the [respondent’s] allegations about the communication between the parties” (appellant’s Summary of Argument filed 25 September 2024, paragraph 13).
His Honour did not do so. That is not surprising when the appellant’s written submissions to the primary judge conceded that the parties are in “an acrimonious but not necessarily high conflict relationship”, albeit one where there were no safety concerns (appellant’s Submissions in Reply filed 28 May 2024, paragraph 12). That can only be a concession as to poor communication.
The submission goes further under this ground asserting a lack of procedural fairness and an outcome which was said to be unreasonable or plainly wrong. They are, however, quite distinct errors of law which are not raised by any of the grounds of appeal.
The grounds of appeal identify the issues to be determined in the appeal and set its metes and bounds. Other grounds, which counsel running the appeal considers might have more appeal to the Court, cannot be shoe-horned into the existing grounds in a valiant attempt to carry the day absent a successful application to amend the Notice of Appeal. Unless an error is obvious (Warren v Coombes (1979) 142 CLR 531), the Court will limit itself to the terms of the grounds.
There is no ground of appeal that contends a finding of poor communication was not open on the evidence, which is again not surprising since it seems not to have been an issue at the hearing.
The respondent submitted:
3.It is submitted that despite there being much unchallenged evidence by the Respondent Mother as to the poor communication between the parties and its deleterious effect on the Respondent Mother and the children the trial judge did not deal with that evidence in the reasons for judgement.
4.In addition, there was unchallenged evidence as to the difficulties the Respondent Mother experiences obtaining medical treatment for the children due to the poor communication between the parties at paragraphs 53-61 of the Respondent Mother’s trial affidavit filed 12 April 2024 (DAB253-254).
(Respondent’s Summary of Argument filed 16 October 2024)
If the evidence was unchallenged, and there is no dispute as to that, there would have been little point in his Honour spending time analysing it in detail to reach a conclusion which, to repeat, appeared not to be in dispute. As the above authorities make clear, the content of the reasons is governed by what is actually in dispute and actually needs to be decided by the trial judge.
Here, whilst the effect of the poor communication may well have been an issue, the clear impression obtained is that the fact of it was not. Reasons, let alone elaborate reasons, are not required for matters that are not contentious.
I am not persuaded that this ground is made out.
Did the primary judge fail to have any regard or sufficient regard “for the legislative pathway”? (Ground 2)
The phrase “failed to follow the legislative pathway”, or similar iterations, is a most unhelpful one. It is so broad as to be meaningless. Whilst it may be accepted that a pathway, in a general sense, may be derived from Part VII, Division 2 of the Family Law Act 1975 (Cth) (“the Act”), it is clearly established that it is something that need not be recited and applied as some mantra regardless of the issues before the Court (SCVG & KLD (2014) FLC 93-582 (“SCVG”) at [78]–[81]; Scarlett & Bradshaw [2019] FamCAFC 184 at [37]).
If the phrase is intended to assert that in some way a trial judge has failed to apply or has misapplied a relevant section of the Act, then that should be the ground of appeal rather than obscuring the real issue by the use of an amorphous and meaningless general reference to the pathway.
Here the appellant, in fact, focused on s 61CA, which provides:
61CA Consultation between parents on major long‑term issues
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long‑term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
These submissions also referred to s 60B, which provides:
60B Objects of Part
The objects of this Part are:
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
These sections, it was submitted, focus on parents being jointly involved in decision-making unless it is unsafe to do so, to the extent of making such a consideration the first step in determining parenting orders. It was then said that if it was safe to do so then the parents must have joint decision-making.
Section 61CA is clearly aspirational in that it ‘exhorts’ or ‘encourages’ parents to behave in an appropriate decision-making process. It is not directed to the courts as a matter for direct consideration let alone raised as a threshold issue.
Orders as to parental responsibility are parenting orders which are determined by having regard to the best interests of the children. The considerations to be taken into account are those set out in s 60CC. The safety of the child and, importantly for present purposes, the safety of any person who has care of the child, in this case the parties, are matters to be taken into account by looking to see what arrangements would promote that safety. If no issues are raised as to safety then, consistently with SCVG, a trial judge would be justified in spending little or no time discussing it.
The role of sections identifying the object of the Act, such as s 60B, was extensively discussed by the Full Court in Maldera & Orbel (2014) FLC 93-602 at [71]–[81]. At [79] the Court concluded that “an order that the child lives with the father had to be driven by the application of s 60CC” and not s 60B.
Thus, parenting decisions are made having regard to the matters raised in s 60CC with that section being construed, where it might need to be, by having regard to the objects set out in s 60B. However, neither that section nor s 61CA imposes a separate and stand-alone criterion that ranks above s 60CC which must be addressed first. That is not to say that communication between parents is not a significant issue, but it arises in the context of best interests and s 60CC.
Whilst the respondent’s written submissions before the primary judge referred to reports she had made to the police about the appellant, she did not assert that there were safety issues that bore upon the questions of parental responsibility. Indeed, she submitted that she would keep the appellant fully informed at all times. Rather, she focussed on the difficulties in communication which included the appellant often being unavailable due to work reasons and being unwilling or unable to respond.
For his part, at the hearing the appellant focussed on safety, which was not a live issue, referred to s 61CA and asserted that this mandated an order for joint parental responsibility.
Whilst it might have been useful for his Honour to have indicated that safety was not an issue that needed to be considered, no error arises from him not doing so.
As to the suggestion that there was no discussion or setting out of the relevant sections and principles, as I have said elsewhere, it is the task of a primary judge to apply the law and not recite it.
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.
The appellant’s case, as originally put, is consistent with poor communication.
The submission ultimately was that insufficient weight was given to these matters. As a number of recent authorities make clear, matters of weight not only face a high bar but must be such as to render the outcome unreasonable or plainly wrong (Hedlund & Hedlund (2021) FLC 94-065 at [36]–[37]; George & George (2024) FLC 94-170 at [42]; Gerard & Santino [2024] FedCFamC1A 218 at [38]). It is questionable whether the ground can be read as going that far and even so, the matters fall short of establishing the outcome was unreasonable or plainly wrong.
It follows that the appeal must be dismissed.
COSTS
The appeal has been unsuccessful. The respondent has been put to the trouble and expense of dealing with the appeal but did so in the context of supporting it. I do not see any reason to depart from the general rule that parties bear his or her own costs (s 117 of the Act).
I certify that the preceding forty-seven (47) 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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