Trevino & Trevino
[2023] FedCFamC1A 188
•2 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Trevino & Trevino [2023] FedCFamC1A 188
Appeal from: Trevino & Trevino [2023] FedCFamC2F 687 Appeal number(s): NAA 185 of 2023 File number(s): SYC 5567 of 2019 Judgment of: SCHONELL J Date of judgment: 2 November 2023 Catchwords: FAMILY LAW – APPEAL – Parenting – Where the appellant contended that the primary judge erred by denying the appellant procedural fairness – Where the primary judge made an order compelling the appellant to obtain a referral for counselling – Where neither party sought such an order – Where the primary judge said she would not make such an order – Where the primary judge fell into error by not giving notice to the parties and denying them the opportunity to be heard about the making of the order – Inadequacy of reasons – Where the reasons are clearly adequate – Appeal allowed in part – Costs certificates issued to both parties. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) Cases cited: Abbott & Vastano (2022) FLC 94-125; [2022] FedCFamC1A 222
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Collins & Monroe [2021] FedCFamC1A 75
Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Crabman v Crabman (No 2) (2020) 61 Fam LR 191; [2020] FamCAFC 146
House v The King (1936) 55 CLR 499; [2936] HCA 40
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Number of paragraphs: 53 Date of hearing: 27 October 2023 Place: Heard in Sydney, delivered in Melbourne Counsel for the Appellant: Ms Shea Solicitor for the Appellant: Steiner Legal Counsel for the Respondent: Mr Keserovic Solicitor for the Respondent: Adam Jones Solicitor ORDERS
NAA 185 of 2023
SYC 5567 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS TREVINO
Appellant
AND: MR TREVINO
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The appeal is allowed in part.
2.Order 23 of the orders made by the primary judge on 9 June 2023 is set aside.
3.The Notice of Appeal filed 6 July 2023 is otherwise dismissed.
4.The appellant is granted a costs certificate pursuant to 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 in respect of the costs incurred in the appeal.
5.The respondent is granted a costs certificate pursuant to 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 in respect of the costs incurred in the appeal.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Trevino & Trevino has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Notice of Appeal filed 6 July 2023, the appellant mother appealed orders made by a judge of Division 2 of the Court in relation to the parties’ only child who at the time of judgment was six years of age.
The Notice of Appeal contained five grounds which fell into two broad categories. Ground 1 related to an order compelling the appellant to attend her general practitioner to obtain a referral for counselling. It is contended that the appellant was denied procedural fairness in the making of this order. Ground 3 was a challenge to the power to make such an order. Counsel for both parties conceded that if error by Ground 1 was established, then it was unnecessary to consider Ground 3.
Grounds 2, 4 and 5 contended inadequacy of reasons in relation to the making of orders for the child to travel on an unaccompanied basis and in relation to Easter and school holiday time.
As Ground 1 contended error by way of denial of procedural fairness, consistent with authority, such ground must be dealt with first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577). As their Honours observed in Crabman v Crabman (No 2) (2020) 61 Fam LR 191:
16.… Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be remedied (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; 231 ALR 663; 70 IPR 468; [2006] HCA 55 at [117]). Unless this is done, the impression created by the defective course remains and undermines public confidence in the administration of justice (Antoun v R (2006) 224 ALR 51; [2006] HCA 2 at [28]).
BACKGROUND
The parties commenced cohabitation in or around 2006 or 2007, married in 2009, separated on a final basis in August 2018 and divorced in 2019.
The parties have one child together, X, who was born in 2016 and is currently 7 years of age. At the time of trial, she was 6 years of age.
The parties’ relationship is marked by a high degree of parental conflict.
On 6 December 2019, the appellant commenced proceedings seeking parenting orders. Various interim orders were subsequently made increasing the respondent’s time with the child.
In June 2022, the respondent relocated to Brisbane where he now lives with his partner and their two children. Following his relocation, time with the child ceased as the parties were unable to agree on the travel arrangements.
The respondent subsequently spent time with the child in August 2022. The primary judge recorded that between August 2022 and the final hearing, the child spent time with the respondent in Brisbane on approximately seven occasions. The travel arrangements involved the respondent travelling to and from Brisbane with the child (at [36]).
The final hearing was heard by the primary judge over two days on 6 and 7 March 2023.
At [46], the primary judge identified the issues relevant to this appeal as follows:
(1)The time that the child should spend with the father during school terms and in the holidays as well as whether that time should occur in Sydney;
(2)The age at which the child should be permitted to travel as an unaccompanied minor; and
(3)Orders in relation to special occasions.
On 9 June 2023, the primary judge delivered her reasons for judgment. Having found that it was appropriate for the child to spend block periods with the father in Brisbane during the school holidays (at [219]), the primary judge ordered that from 2024 onwards, the child spend eight nights in a block with the respondent during the Term 1, 2 and 3 holidays and approximately half the Christmas school holidays.
Her Honour also found that it was in the child’s best interests that the child travel as an unaccompanied minor and consequently ordered that such travel occur from the Term 1 school holidays in 2024 (at [232]).
The primary judge accepted the single expert’s evidence that the appellant is highly anxious in regard to the child travelling unaccompanied (at [230]). To ameliorate the appellant’s anxiety, the primary judge ordered that the appellant attend upon her general practitioner to obtain a referral for counselling to support the child travelling as an unaccompanied minor (Order 23 of the orders made 9 June 2023).
GROUNDS 1 AND 3
1. That the trial judge erred in failing to afford procedural fairness to the [appellant] before making Order 23 compelling the [appellant] to undertake counselling in order to support the child travelling as an unaccompanied minor between Sydney and Brisbane from the age of 7 years 8 months.
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3. That Order 23 was made without power as it is not a parenting order, and is a self-standing order untethered from any parenting order.
Order 23 is in the following terms:
23. The [appellant] shall forthwith attend upon her General Practitioner to obtain a referral to obtain counselling to support the child travelling unaccompanied between Sydney and Brisbane and the [appellant] shall provide to her counsellor a copy of:
(a) The Single Expert Report dated 7 March 2022; and
(b) The Updated Expert Report dated 16 February 2023.
It is a coercive order. It is not in issue that neither party sought such an order.
The appellant submitted that as such an order was not contemplated and had notice been given of such an order, then the appellant would have had the opportunity to cross-examine the single expert and make submissions as to the appropriateness or otherwise of the making of such an order. The appellant further submitted that the primary judge indicated to the parties that she would not make such an order. In that respect, the appellant relied upon the following passage from the transcript:
HER HONOUR: Neither of you have addressed me on the willingness of your clients to engage in any therapeutic – and it’s not part of what either of you seek. My difficulty is, without that from both of your clients, I’m not – I don’t think there’s any value in me making orders that haven’t been engaged with at all. It will just be another area of dispute, won’t it?
[COUNSEL FOR THE APPELLANT]: It is.
HER HONOUR: I mean, it’s something that you can do, and you should do, because that seems to be relatively sensible, but in the absence of anyone actually engaging with that, I’m not likely to make – well, I won’t make orders
(Emphasis added) (Transcript 7 March 2023, p.157 lines 6–16)
The respondent submitted that the appellant was on notice that therapy had been recommended by the single expert and consequentially cannot now be heard to complain. He submitted that the possibility of an order of the type ultimately made must have been in the contemplation of the appellant. He further submitted that the primary judge made the statements referred to above during submissions and accordingly, there is no basis to the submission that the appellant was denied the opportunity to cross-examine the single expert.
Discussion
It is apparent from the Updated Family Report of the single expert dated 16 February 2023 and from the cross-examination that the single expert was of the view that the appellant would benefit from engaging in therapy to assist her and the child in managing anxieties including in relation to the issue of unaccompanied travel.
There is, however, a significant difference between reading recommendations by experts and hearing them give evidence, recommending a certain course of action and making a coercive order requiring a party to comply with such a recommendation.
It is a fundamental tenant of procedural fairness that a party be given notice and have an opportunity to adduce evidence and/or make submissions where an order is to be made compelling them to do something.
As Tree J observed in Abbott & Vastano (2022) FLC 94-125:
11.A trial judge is not bound by the proposals of the parties or by the evidence of a witness (U v U (2002) 211 CLR 238 at [80]). However, it is an error for a trial judge to represent to the parties that a certain order is not in contemplation but then make that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).
In this instance, there was no order sought by either party that compelled the appellant to attend upon counselling and accordingly, the terms of the parties’ relief as presented to the primary judge did not identify that as a matter for either the adducing of evidence or the making of submissions. Further, the primary judge made it plain to the parties during the course of submissions that she would not make a coercive order. Such an order may have been appropriate if made conditional as part of a parenting order but only after having afforded the parties the opportunity to be heard.
I am satisfied that, in circumstances where the appellant was not on notice of any order sought and there was a positive assurance from the Court that no such order would be contemplated, let alone made, the mother was denied procedural fairness.
I am satisfied there is merit to Ground 1, and the order must be set aside.
In circumstances where I am satisfied that there is merit to Ground 1, then consistent with the objects of the Federal Circuit and Family Court of Australia Act 2021 (Cth) calling for the quick resolution of disputes and the efficient delivery of justice, in the interests of judicial economy, Ground 3 need not be addressed (see also Boensch v Pascoe (2019) 268 CLR 593).
GROUNDS 2, 4 AND 5
2. That the trial judge failed to give adequate reasons for making Orders 32 and 34, and specifically, in finding that the [appellant’s] firmly held belief that the child should not travel unaccompanied until the age of 12 is likely to change as a result of counselling, such that she will be capable of supporting the child to travel unaccompanied from the age of 7 years 8 months.
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4. That the trial judge failed to give any reasons for rejecting the [appellant’s] proposal for the child to spend time with her at Easter each year.
5. That the trial judge failed to give any or adequate reasons for accepting the [respondent’s] proposal for the child to commence spending block periods of three consecutive weeks with the [respondent] during the 2024 Christmas school holidays.
Grounds 2, 4 and 5 are a challenge to the adequacy of the primary judge’s reasons.
The extent and adequacy of reasons depend upon the circumstances of the case, but adequacy is met where this Court is able to ascertain the reasoning and justice is seen to be done (Bennett and Bennett (1991) FLC 92-191). Further, the reasons must be such that the parties are able to understand the basis of the judge’s decision and which arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
These grounds challenged the adequacy of the primary judge’s reasons in relation to travel as an unaccompanied minor (Ground 2), what are said to be an absence of reasons in relation to orders for time at Easter as sought by the appellant (Ground 4), and orders for half the Christmas school holidays in a block period with the respondent commencing in 2024/2025 (Ground 5).
It is convenient to deal with the grounds in the order in which they appeared in the appellant’s Summary of Argument and by way of oral argument. Relevant to the disposition of the appeal in relation to these grounds is the absence of a challenge to the expert evidence or to the primary judge’s findings.
In relation to Ground 2, the appellant submitted that the Court well knew the appellant’s strongly held opposition to this order, describing her belief as “firm and fixed” (at [201]). The primary judge also knew that the mother was highly anxious about the child travelling unaccompanied and that there was a risk to the child if the mother did not support such travel. The appellant submitted that the age at which the child should be permitted to travel was very significant and that, while therapy was recommended, there was no evidence that it would assist the appellant in shifting her strongly held view.
The appellant submitted in the following terms:
48.Nowhere in the Judgment did her Honour explain why she was satisfied that the [appellant] would be capable of supporting [the child] travelling as an unaccompanied minor from the age of 7 years 8 months, when the [appellant’s] steadfast view was that [the child] should not travel unaccompanied until the age of 12.
49.There was no evidence before her Honour that therapy would be effective in shifting the [appellant’s] position. Nor was there any evidence that even if the [appellant’s] position could be shifted, it would shift to such an extent that she would be capable of supporting [the child] travelling unaccompanied from the age of 7 years 8 months, and that such a shift could realistically be achieved within a period of 10 months after Final Orders were made. In the absence of such evidence, it is not possible to discern how her Honour concluded that the [appellant] would be capable of supporting [the child] travelling as an unaccompanied minor from the commencement of the Term 1 2024 school holidays.
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52.Having found that the [appellant] was highly anxious in relation to [the child] travelling unaccompanied; that she held a “firm and fixed belief” that [the child] should not travel unaccompanied until age 12, and that [the child] needed the [appellant’s] support in order to be able to travel successfully on an unaccompanied basis, it was incumbent on the primary judge to explain the basis for her decision that [the child] should commence travelling unaccompanied from the Term 1 2024 school holidays, at the age of 7 years 8 months. It is submitted that her Honour failed to give adequate reasons in this regard.
(Emphasis in original)
In relation to Ground 4 and time at Easter, the appellant submitted she sought a specific order while the respondent sought no order other than one for holiday time. The appellant submitted as follows:
56. Her Honour ultimately made no order as to [the child’s] time with either parent during Easter but did not explain why in the body of her Judgment. Her Honour failed to expose the basis uponp [sic] which she rejected the [appellant’s] proposal and thereby fell into appealable error.
As to Ground 5 in relation to block periods of time in the Christmas school holidays, the appellant submitted that the parties were at issue as to when the block periods should start, with the appellant submitting that it should be in 2027 and the respondent submitting that it should be in 2024. The appellant submitted that the single expert made no recommendation when half Christmas holidays should start. The appellant submitted:
62.[The single expert] did not make any recommendation as to when a further graduation from seven consecutive nights would be in [the child’s] best interests. She did not give any evidence as to when [the child] would have the capacity to cope with three consecutive weeks away from [the appellant]. Importantly, however, she expressed the following caveat at [56] of her Updated Expert Report:
[The child’s] capacity to manage longer time will be contingent on her receiving the message from her parents that they find this acceptable and that they help her to lean into the increased time.
63.Given the above, and noting the [appellant’s] clear opposition to [the child] spending three consecutive weeks with the [respondent] before Christmas 2027, it was incumbent on the primary Judge to explain why she was satisfied that commencing three week blocks at the end of 2024 was in [the child’s] best interests. It is submitted that her Honour failed to expose the reasoning process behind her decision and thus fell into appealable error.
(Footnote omitted)
Finally, the appellant submitted that if Order 23 is set aside, then inevitably Orders 32 and 34 must also be set aside. In that respect, the appellant submitted:
65.It is submitted that if the appeal is allowed in relation to Order 23, that order cannot simply be set aside on its own. Her Honour made Orders 32 and 34 for [the child] to commence unaccompanied travel from the Term 1 2024 school holidays on the premise that the [appellant] would undergo counselling to assist her in supporting unaccompanied travel prior to those arrangements coming into effect. Her Honour clearly found that [the child] needs the [appellant’s] support in order to be able to travel unaccompanied, and that the [appellant] needs therapy in order to provide that support. Orders 32 and 34 cannot remain in effect if Order 23 is set aside. Orders 32 and 34 are also of course the subject of an independent ground of appeal under Ground 2 and can also be set aside on that Ground.
The respondent contended that there are sufficient reasons to support each of the orders made by the primary judge and that even if Order 23 is discharged, the remaining orders can remain.
Discussion
A reading of the reasons in their entirety demonstrates that there are adequate and comprehensive reasons to support each of the orders made by the primary judge. The primary judge carefully considered the expert evidence and made findings consistent with that evidence that supports the orders the subject of the appeal.
As to Ground 2, the primary judge recorded both what was said by the appellant as to the child’s nervousness about travelling unaccompanied as well as the respondent’s evidence that the child has travelled regularly to and from Brisbane, was comfortable with flying and is independent for her age. The primary judge also recorded the appellant’s resistance to the idea of unaccompanied travel, recording, as identified in the appellant’s Summary of Argument, that she was steadfastly opposed to it until the child attained the age of twelve. The primary judge recorded the appellant’s anxiety in relation to the child travelling unaccompanied and that it was in the child’s best interests for there to be a delay in unaccompanied travel to allow the mother to receive therapeutic support (at [230]). The primary judge acknowledged that there could be a risk to the child in relation to unaccompanied travel if it is not supported by the appellant (at [231]) but was satisfied that the appellant would carefully read the reasons for judgment and would undertake therapy to support the child travelling unaccompanied (at [203]). The primary judge also accepted the expert evidence that the child may find the travel, as she gets older, easier but that the onus was on the appellant to assist the child in that process (at [163]).
The determination by the primary judge as to when the child would be able to travel as an unaccompanied minor involved the exercise of discretion. The Full Court’s observations in Collins & Monroe [2021] FedCFamC1A 75 are apposite:
16The proper exercise of discretion in parenting cases may be broad, and “[i]t is a mistake to think that there is always only one right answer to the question of what the best interests of a child require.”
(Footnote omitted)
Here there is no challenge to the exercise of discretion (in the sense of House v The King (1936) 55 CLR 499). It is limited purely to adequacy of reasons. It is clear from a reading of the judgment as a whole that the reasons of the primary judge are clearly exposed. As referred to above, at [229] to [237], the primary judge specifically addressed the issue of travelling as an unaccompanied minor, including finding that the child is not at risk from travelling as an unaccompanied minor from the Term 1 holidays in 2024 (at [232]). The primary judge, however, also accepted the evidence of single expert that the appellant should be given an opportunity to obtain professional assistance by way of therapy in supporting the child travel unaccompanied (at [174] and [192]), which explains the delay in implementing the unaccompanied travel order.
Having satisfied herself that the child was not at risk, having acknowledged the importance of the child spending time with her extended paternal family in Brisbane and having provided the appellant with the opportunity to access therapy before the commencement of unaccompanied travel, the process of reasoning is revealed. There is no basis to the submission that the reasons of the primary judge’s as to when unaccompanied travel should commence were inadequate.
I do not accept the appellant’s submission that if the Court found error pursuant to Ground 1, then inevitably Orders 32 and 34 must be set aside. Under the terms of the primary judge’s orders, unaccompanied travel for the child does not commence until the Term 1 school holidays in 2024. Counsel for the appellant agreed that that would be a date sometime in April 2024. In those circumstances, given judgment was delivered on 9 June 2023, the appellant will have had nearly ten months in which to obtain and engage in therapy to assist herself and, more importantly, her daughter. It would be disingenuous of the appellant not to have engaged or already embarked upon that process of therapy in circumstances where the orders have not been stayed or set aside, where the appellant’s counsel at trial submitted the appellant should be given an opportunity to attend therapy and where the appellant was clearly cognisant of the recommendations of the single expert in her report, heard them during the course of her evidence in March 2023 and has had the benefit of the judgment since 9 June 2023.
There is no merit to Ground 2.
In relation to Grounds 4 and 5, the primary judge recorded at [165] the single expert’s opinion that the child “is now at school and that is a stage of development when children are sufficiently mature to graduate to spending one half of school holidays with parents. It is preferable for that to be introduced in a graduated manner” (Updated Family Report dated 16 February 2023, paragraph 55). The orders made by the primary judge introduced time gradually. The fact that it did not occur at the pace the mother sought is not demonstrative of error.
On the issue of school holiday time, the primary judge found that it is important for the child to spend time with her father in Queensland and that “doing so [would] support the bonds that she has with her paternal family” (at [168]), and that such time should occur in Brisbane as frequently as possible (at [182]). The primary judge accepted the single expert’s evidence that “there is a risk that if time does not occur in Brisbane, that [the child] may, as she approaches adolescence, resent not spending sufficient time with the father and her siblings” (at [183]).
The primary judge accepted the evidence of the single expert that the child’s “relationship with her father and her paternal family is important to her identity” (at [218]), and that “given the distance between the parent’s [sic] homes it is appropriate for the child to spend block periods of time with her father in Brisbane during school holidays” (at [219]). These findings expose the process of reasoning that resulted in the orders that see the child spending increasing periods of time with respondent, resulting in spending eight nights during the Term 1, 2 and 3 school holidays from 2024 onwards and spending block periods of time in the Christmas school holidays in December 2024/January 2025.
As to Ground 4, it is clear that the primary judge was conscious of the appellant’s proposal for time over Easter but accepted the recommendations of the single expert, which were not the subject of any challenge, that it was important for the child to spend block periods of time with the respondent and her extended paternal family in Brisbane. This could only be accommodated by the child spending time with respondent in the Term 1 holidays.
I further note the concession by the appellant’s counsel that Easter does not always fall within the school holiday period and accordingly, it may well be that there are occasions when the child is spending the Easter holidays with the appellant. That said, however, it is clear from a reading of the totality of the reasons that the primary judge was conscious of the orders that the appellant sought. A judge is not required to accept a party’s proposal merely because it is advocated by them. In this instance, the primary judge in reliance upon the unchallenged evidence of the single expert accepted that it was in the child’s best interest to spend block periods of time with respondent, and that could only be accommodated in the school holiday periods.
In relation to the question of when the child should spend block periods of time in the Christmas school holidays, again, the primary judge was conscious of the competing positions of each of the parties as well as the evidence of the single expert that the child would be able to deal with block periods of time away from appellant if it were introduced in a graduated way. Consistent with that recommendation, the primary judge accepted the single expert’s evidence that the child was of an age where she would be able to spend one half of school holidays with her parents and recommended that there be seven consecutive nights in the 2023 Christmas school holidays. Whilst the single expert did not make any recommendation thereafter, entirely consistent with her evidence that the child should spend block periods of time with the respondent in Queensland, that she was of an age where she could tolerate half school holidays with her parents and where the evidence of the single expert was accepted by the primary judge, then the process of reasoning supporting the primary judge’s decision is apparent.
The primary judge’s reasons are clear, capable of ascertainment and it is apparent that justice is seen to be done. There is no merit to Grounds 2, 4 and 5.
CONCLUSION
As error has been established by Ground 1, the appeal will be allowed in part.
The appeal has succeeded in part on a question of law. In those circumstances, I consider it appropriate to grant costs certificates to the appellant and the respondent.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 2 November 2023
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