Willmore & Menendez

Case [2022] FedCFamC1A 73

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Willmore & Menendez [2022] FedCFamC1A 73

Appeal from: Menendez & Willmore [2021] FamCA 595
Appeal number(s): NAA 8 of 2021
File number(s): BRC 354 of 2020
Judgment of: MCCLELLAND DCJ, BAUMANN & HARTNETT JJ
Date of judgment: 20 May 2022
Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Best interests of the child  – With whom the child lives and spends time – Discretionary judgment – Where the trial judge made orders for the child to live with the respondent and spend time with the appellant and for the respondent to have sole parental responsibility – Where the appellant submitted that she was encouraging of the relationship between the child and the respondent and that she had not manipulated evidence – Where the primary judge found there was a risk of harm to the child posed by the appellant’s entirely negative perception of the respondent – Where the primary judge found the appellant had factually changed events and fabricated allegations of sexual abuse to remove the respondent from the child’s life – Where the primary judge found that the appellant tried to exert control over the child’s relationship with the respondent – Findings as to with whom the child should live was open on the evidence – Where the primary judge failed to provide adequate reasons as to supervised time for an extended period – Appeal allowed in part – Matter remitted – Costs certificates granted.
Legislation:

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 117

Federal Proceedings (Costs) Act 1981 (Cth) s 6

Cases cited:

B and B (1993) FLC 92-357; [1993] FamCA 143

Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198

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

Blinko & Blinko [2015] FamCAFC 146

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Cheadle & Pointer [2020] FamCA 327

Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15

FJ & PN Curran Pty Ltd v Almond Investors Land Pty Ltd [2019] VSCA 236

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gong & Wei (2017) 59 Fam LR 1; [2017] FamCAFC 55

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

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

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

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

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31

Owens & Benson [2014] FamCAFC 243

Reeves & Grinter [2017] FamCAFC 19

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550;

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AGLC
Willmore & Menendez [2022] FedCFamC1A 73
Case
[2022] FedCFamC1A 73
Decision Date

CaseChat Overview and Summary

In the case of Willmore & Menendez, the appeal was heard by the Federal Circuit and Family Court of Australia. The matter concerned the determination of parenting arrangements for a child born of the relationship between the parties, the appellant and the respondent. The primary judge made orders that the child was to live with the appellant and spend time with the respondent. The appellant appealed the orders, particularly the arrangements for the child to spend time with the respondent.

The legal issues for the court to determine were whether the primary judge's findings in relation to the best interests of the child were open on the evidence, whether the primary judge provided adequate reasons for the orders made, and whether the appeal should be allowed in whole or in part. The court was also required to consider the costs to be awarded to the parties.

The court found that the findings as to with whom the child should live was open on the evidence. However, the court held that the primary judge failed to provide adequate reasons for the orders made in relation to the child spending time with the respondent for an extended period. The court found that the primary judge's reasons did not address the evidence or the relevant considerations in determining the appropriate arrangements for the child to spend time with the respondent. The court held that the appeal was allowed in part and the matter was remitted for rehearing before a different judge. The court also granted costs certificates to the parties and the Independent Children's Lawyer.

Orders

Orders of the court

NAA 8 of 2021

BRC 354 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS WILLMORE

Appellant

AND:

MR MENENDEZ

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ, BAUMANN & HARTNETT JJ

DATE OF ORDER:

20 MAY 2022

THE COURT ORDERS THAT:

1. The appeal is allowed in part.

2. Orders 4(b)–(f) and (5) made on 11 August 2021 be set aside.

3. The matter is remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend with the appellant; in what circumstances and upon what conditions (if any).

4. The Court grants to the appellant 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 by her in relation to the appeal.

5. The Court grants to the respondent 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 in respect of the costs incurred by him in relation to the appeal.

6. The Court grants the Independent Children’s Lawyer (‘ICL’) 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 ICL in respect of the costs incurred by the ICL in relation to the appeal.

7. The Court grants to each of the parties and the ICL a costs certificate pursuant to the provisions of s 8 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 each of the parties and the ICL in respect of the costs incurred by them in relation to the new trial ordered.

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.

Background

Background to the litigation

There has been no stay of the orders.BACKGROUND The respondent, aged 45 at the time of the trial, and the appellant, aged 37 at the time of the trial, commenced their relationship in 2013 and began cohabitation in 2015. The child was born in 2015. The parties separated, on the respondent's evidence, in October 2017 and, on the appellant's evidence, in November 2016. Whichever the separation date, the child remained in the primary care of the appellant. The respondent commenced a relationship with Ms C in October 2019. They have a child together, Child Y, born in 2021. Until April 2019, the subject child spent overnight time with the respondent for up to three nights each week. The appellant suspended time between the respondent and child during the period April 2019 and May 2019. The appellant wished for time to be spent between the child and the respondent during weekdays, which the respondent was not able to accommodate because of his work schedule. Thereafter, the child’s time with the respondent recommenced in June 2019, but during the day only. Following the respondent seeking, on 13 January 2020, parenting orders in the then Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia), interim orders were made on 2 March 2020. Those orders provided for the child to spend time with the respondent from 8.00 am to 7.00 pm Monday, Saturday and Sunday in week one, and from 8.00 am to 7.00 pm on Monday in week two. The appellant, however, whilst complying with those orders until June 2020, continued to oppose the respondent spending any time with the child, with her opposition predating her allegations of sexually inappropriate behaviour by the respondent toward the child. The Family Consultant, who conducted interviews with the parties in April 2020, recommended that the child spend two nights each week with the respondent. The appellant opposed that recommendation. The appellant again suspended the child’s time with the respondent in June 2020, on the basis that she suspected the respondent had sexually abused the child. The appellant reported her concerns to the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) and the police. The child was jointly interviewed by a male police officer and a female police officer in June 2020, and the 15 minute interview was video recorded. No further action was taken by the Department or police. In October 2020, and during the preparation of a Family Report, the appellant indicated to the single expert Family Report writer that she opposed the child spending any time with the respondent because of a risk to the child of sexual abuse. The appellant also claimed that the child and respondent did not have a close relationship. The Family Report writer recommended that the child continue to live with the appellant but spend frequent unsupervised time with the respondent. That recommended unsupervised time did not occur, although supervised time did commence in November 2020. The child had not seen the respondent for five months and the respondent had agreed to see the child on terms as proposed by the appellant. At trial, supervised time was occurring for one hour each alternate Saturday and Sunday.

Evidence

Evidence Before The Court

This ground is without merit. The evidence of the Family Report writer – Ground 4(b) The primary judge was not obliged to set out in her reasons every piece of evidence before her, nor to resolve every disputed fact.[37] The Family Report writer’s evidence in relation to possible alienating behaviour was in the context of the totality of his evidence, and the evidence as a whole.[37] CDJ v VAJ (1998) 197 CLR 172 at [152]. Whilst this ground of appeal does not identify with particularity the evidence to which Ground 4(b) relates, the respondent and the ICL submitted that the ground was intended to be a reference to an exchange between the Family Report writer and counsel for the respondent at the trial.[38] Counsel for the appellant did not cavil with that submission. That exchange was as follows:[38] Transcript 7 July 2021, p.149 line 34 to p.150 line 26.[Counsel for the respondent]: [Family Report writer], if the court forms the view that the [appellant] is likely, if the [respondent] spends any unsupervised time with the child – if the child spends any unsupervised time with the [respondent], I should put it – if the court finds that there is a real risk that the [appellant] will continue to raise issues about the [respondent’s] care or what happens with the child when he is in his care, that represents a different risk to [Child X], doesn’t it? [Family Report writer]: Yes, and that’s what I was alluding to before. I think – I think that is – that is the real – I guess the real – should be the real test here with the [appellant] – that I think – I think, in some ways, she needs to – she needs to demonstrate that she can put the child’s interests first in regards to encouraging and facilitating a relationship with the [respondent], not engaging in the things that you just talked about. She needs to demonstrate that – that she can do that. …[Family Report writer]: Well I was just going to say, if she – if she can’t do that – if she can’t demonstrate that, in the context of – and I should probably preface this by saying, you know, it seems like the [appellant’s] – I guess, the concerns that are being talked about here, in terms of how the [appellant] has withdrawn time with the child and the [respondent] – you know, interfering with phone conversations, etcetera, etcetera – all of those behaviours are what seem to be quite – the – the – the [appellant’s] attempt to sort of exert some control over the situation. She’s not necessarily engaged in – she’s not necessarily engaged in alienating behaviour per se. She’s not – the child doesn’t seem to be just aligned with her and rejecting the [respondent], is what I’m saying. …[Family Report writer]: Well, I guess what I am saying, just to finish, is that that – that control that – that she seems to be attempting to exert is the real issue here. And so if she – if – if she is placed in a position where the control is effectively taken away from her, that is, the child spending significant time with the [respondent] – therefore, not reliant on the [appellant] to facilitate such time, or – or, you know, not interfere with phone calls or has a say on how things – how the time is spent between the child and the [respondent], etcetera – if that control is taken away in that – in that sense, then I think that would be the real test to see if the [appellant] can do what – what, I guess, I think she needs to do. [Counsel for the respondent]: There would be considerable concern for the court based on the [appellant’s] past behaviour, wouldn’t there be?[Family Report writer]: Well, I mean, yes, that’s true in some regards, sure. The past – the past can predict the future – past behaviour can predict the future behaviour, but there’s also plenty of exceptions to that.

Decision

Reasons for decision

Ground 6 is without merit.CONCLUSION We are satisfied that the judgment is affected by error in so far as it fails to sufficiently state the reasoning of the primary judge for making Orders 4(b)–(f) and 5 of the orders made 11 August 2021. Accordingly, the matter will be remitted for rehearing before a judge other than the primary judge in respect of the issue of what time the child will spend with the appellant and in what circumstances and upon what (if any) conditions. COSTS Each of the parties sought costs certificates in the event the appeal was successful. Pursuant to ss 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) we are satisfied that it would be appropriate for the Attorney-General to authorise a payment under the Costs Act to each of parties and the ICL and that cost certificates should be issued to the appellant, the respondent and the ICL for the appeal and the rehearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.