Waltz & Busto - [2024] FedCFamC1A 147

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Waltz & Busto [2024] FedCFamC1A 147

Appeal from: Orders dated 3 March 2024

Appeal number: NAA 75 of 2024

File number: MLC 2147 of 2012

Judgment of: TREE J

Date of judgment: 30 August 2024

Catchwords: FAMILY LAW – APPEAL – Enforcement – Where the primary judge made orders providing for a change of name for the child in 2023 – Where the appellant father did not comply with those orders and the mother subsequently filed an Application Enforcement – Where the primary judge made orders that varied the substance of the 2023 orders – Where the orders were made in excess of jurisdiction – Where notwithstanding this error there is no utility in setting aside the appealed orders as doing so would merely revive the 2023 orders which are expressed in analogous terms – Appeal dismissed.

Legislation:
Family Law Act 1975 (Cth) Div 13A, s 70NBA

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.64

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

Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85

Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42

Ramsey & Ramsey (No 2) (1983) FLC 91-323; [1983] FamCA 13

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

Number of paragraphs: 26

Date of hearing: 23 August 2024

Place: Cairns (via video link)

The Appellant: Litigant in person

The Respondent: Litigant in person

ORDERS

NAA 75 of 2024
MLC 2147 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR WALTZ

Appellant

AND:
MS BUSTO

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

30 AUGUST 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waltz & Busto has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION

On 7 June 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final parenting orders (“the 2023 orders”). Order 2 afforded Ms Busto (“the mother”) sole parental responsibility for the parties only child (“the child”) who, by virtue of Orders 5 and 6, would live with the mother and neither spend time, nor communicate with Mr Waltz (“the father”).
Order 4 provided that “[t]he parties do all things necessary to register…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Waltz & Busto

Details

AGLC: Waltz & Busto [2024] FedCFamC1A 147
Case: [2024] FedCFamC1A 147
Decision Date: 30 August 2024

CaseChat Overview and Summary

The appeal in Waltz & Busto was brought by the father, Mr. Waltz, against the orders made by the primary judge in 2023 and subsequently varied in 2024. The dispute pertains to parenting arrangements, specifically the enforcement of orders relating to the child's name change and visitation rights. The case was heard by the Federal Circuit and Family Court of Australia, Division 1 Appellate Jurisdiction.

The central legal issues in this appeal revolved around the primary judge's discretion in making parenting orders and whether the court had the jurisdiction to vary those orders. The father argued that the primary judge failed to consider the child's best interests when making the orders and questioned the legality of the 2024 orders. The court needed to determine if the primary judge exercised her discretion correctly and whether the 2024 orders, which varied the 2023 orders, were within the court's jurisdiction.

The court found that although the primary judge's 2024 orders were made in excess of jurisdiction, there was no utility in setting them aside as doing so would simply reinstate the 2023 orders. Despite this error, the court determined that the outcome would remain unchanged, and thus, the appeal was dismissed. The court's reasoning was based on the principle that the 2023 and 2024 orders were expressed in analogous terms, and there was no practical difference in the result. Consequently, the father's appeal was unsuccessful, and the orders stood as made.

The final orders of the court dismissed the appeal and maintained the parenting orders as varied in 2024. The court noted that this decision was subject to review and potential variation as per the relevant rules.

Orders

Orders of the court

NAA 75 of 2024

MLC 2147 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR WALTZ

Appellant

AND:

MS BUSTO

Respondent

ORDER MADE BY:

TREE J

DATE OF ORDER:

30 AUGUST 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).

Background

Background to the litigation

For the short form reasons which follow (Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36(2)), the appeal will be dismissed.BACKGROUND The father is currently 52 years old and works in a business. The mother is 46 years of age and not currently in employment. The parties commenced their relationship, and married, in Country B in 2008, but separated in 2010. Thereafter the child was born in 2011 and is presently 13 years old. Unsurprisingly, given he was a baby, initially the child lived with the mother, and spent short, irregular periods of time with the father. However it appears as though difficulties ensued, such that in 2012, these proceedings were commenced by the father. In 2016 interim parenting orders were made for the child to spend supervised time with the father, which orders proved difficult to implement. Those orders were seemingly shortly thereafter superseded by interim consent orders for the child to spend limited, but regular, unsupervised time with the father. However that time ceased in August 2017 after an allegation emerged that the father had assaulted the (then 6 year old) child, which was substantiated by the DHHS. It seems that the child has not spent time nor communicated with the father since then. It is apparently not in dispute that in August 2017, whilst in the father’s care, the child did indeed sustain injuries to his face, neck and arms. Despite the father’s claim that those injuries were sustained in a fall, in 2022 he was convicted of two counts of unlawfully assaulting the child. Nonetheless thereafter the father continued to deny any wrongdoing, and pressed his claim for parenting orders permitting him to resume spending time with the child. When interviewed by the family report writer in February 2022, the child reported that he did not want to spend time with the father (Family Report 8 August 2022 paragraph 63) and indeed “not even for a second” (at paragraph 67). Whilst it does not appear that the primary judge’s (presumably oral) reasons for the 2023 orders have ever been reduced to writing, and hence one can only conjecture as to why her Honour made them, it would not be difficult to envisage that she found that the father presented an unacceptable risk of some kind of harm to the child, who would not benefit from maintaining a relationship with him. More specifically, as to the change of the child’s name, whilst again one can only conjecture, it seems likely that removing the father’s surname from the child’s surname was adjudged to be in the child’s best interests for related reasons. THE APPEAL The appeal extends to only 2 grounds as follows:1.I believe the primary judge has erred the law by not considering the best interests of the child when exercising her discretion.2.I hope the Appellate Body can review whether the primary judge made an error in applying the law when exercising her discretion. Ground 2 is clearly not a proper ground of appeal, and whilst Ground 1 is competent, the father’s Amended Summary of Argument (dated as having been received on 9 August 2024) is silent on that fact, and is preoccupied only with his challenge to Order 4 of the 2023 orders, the time for appealing against which has long expired. However I shall nonetheless consider whether there is any error discernible in the 2024 orders.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

NAA 75 of 2024 MLC 2147 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR WALTZ Appellant
AND:	MS BUSTO Respondent

Appeal from:		Orders dated 3 March 2024
Appeal number:		NAA 75 of 2024
File number:	MLC 2147 of 2012
Judgment of:	TREE J
Date of judgment:	30 August 2024
Catchwords:	FAMILY LAW – APPEAL – Enforcement – Where the primary judge made orders providing for a change of name for the child in 2023 – Where the appellant father did not comply with those orders and the mother subsequently filed an Application Enforcement – Where the primary judge made orders that varied the substance of the 2023 orders – Where the orders were made in excess of jurisdiction – Where notwithstanding this error there is no utility in setting aside the appealed orders as doing so would merely revive the 2023 orders which are expressed in analogous terms – Appeal dismissed.
Legislation:	Family Law Act 1975 (Cth) Div 13A, s 70NBA Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 36, 138 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.64
Cases cited:	House v The King (1936) 55 CLR 499; [1936] HCA 40 Molier & Van Wyk (1980) FLC 90-911; [1980] FamCA 85 Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42 Ramsey & Ramsey (No 2) (1983) FLC 91-323; [1983] FamCA 13 Warren & Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs:	26
Date of hearing:	23 August 2024
Place:	Cairns (via video link)
The Appellant:	Litigant in person
The Respondent:	Litigant in person

ORDER MADE BY:	TREE J
DATE OF ORDER:	30 AUGUST 2024