Allesch v Maunz

Fiedler & Vitale [2025] FedCFamC1A 7

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

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

Hall and Hall (1979) FLC 90-713; [1979] FamCA 73

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

Khatri & Khatri [2024] FedCFamC1A 152

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

Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8

U v U (2002) 211 CLR 238; [2002] HCA 36

1. Appeal NAA 341 of 2024 is allowed in part.
2. The matter be remitted for rehearing in relation to the question of Z's time with the appellant until the commencement of Order 7(g) of the Orders of 15 November 2024.
3. Orders 7(a)-(f) made by the primary judge on 15 November 2024 be set aside on the first date that the matter is before a judge of the Federal Circuit and Family Court of Australia (Division 2) following remittal for rehearing.
4. The appellant be 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 by him 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).

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 Addicks & Addicks has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. By way of Amended Notice of Appeal filed 19 February 2025, the appellant father appeals from final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 15 November 2024 in relation to the parties' three children, X (born 2016) aged 8, Y (born 2018) aged 7, and Z (born 2021) aged 4.
2. The final parenting orders provided for the respondent mother to have sole decision-making responsibility in relation to medical needs for all three children and that otherwise both parties exercise joint decision-making responsibility for long-term parenting issues. The orders also provided for X and Y to live with the mother and spend time with the father five nights a fortnight during the school term (Friday afternoon to Wednesday morning) and for half of the school holidays. The orders provide for Z to live with the mother and spend time with the father each Tuesday from 9.00 am to 6.00 pm until he starts kindergarten in 2027, ultimately increasing to the same time as his sisters after Term 3 of 2027.

1. The appellant is 49 years of age and the respondent is 35 years of age. The parties married in October 2015 and separated in either July or September 2019.
2. Although the parties were separated in 2019, they remained in contact with one another. The respondent gave birth to Z 18 months after separation. However, Z has only ever lived with the respondent.
3. The appeal challenges orders 2, 5 and 7 of the orders made 15 November 2024. In substance, there are three challenges: first, whether the respondent should have sole parental responsibility with respect to medical issues; secondly, the amount of time between the appellant and the youngest child from the date of trial until 2027; and thirdly, whether the appellant's time with the three children should be equal time from 2027. The relevant orders provide:

2. (a) The mother shall have sole decision making relevant to each child's medical needs.

(b) The mother shall notify the father of any decision she makes pursuant to order 2(a) and provide the father with the name of the treating professional and authorise the treating professional to provide to the father, at his expense, information relevant to the treatment.

...

5. [X] and [Y] shall spend time with their father as follows:

(a) During school term time, each alternate weekend from after school or preschool or day care Friday to before school or preschool or day care Wednesday, starting the first Friday of each school term.

(b) During Term 1, 2 and 3 school holidays, from 9am on the first Sunday to 5pm on the middle Sunday.

(c) During Term 4 school holidays for 7 night periods from 9am Sunday to 5pm the following Sunday starting in the 2nd, 4th and 6th weeks (or part thereof if the holiday periods ends in the 6th week of those school holidays).

(d) On the father's birthday and on each child's birthday from 3pm to 6pm.

(e) On Father's Day from 9am to 6pm.

(f) From 2pm Christmas Eve to 2pm Christmas Day in each year ending in an odd number, and from 2pm Christmas Day to 2pm Boxing Day in each year ending in an even number or zero.

...

7. [Z] shall spend time with his father as follows:

(a) Each Tuesday from 9am to 6pm until such time as [Z] starts kindergarten in 2027 whereupon this order will be discharged.

(b) Until the end of Term 2 in 2027, during school term time each alternate weekend from 9am Saturday to 6pm Sunday coincident with the weekend [X] and [Y] spend with their father.

(c) Until the end of Term 2 in 2027, on the middle weekend of the Term 1, 2 and 3 school holidays from 9am on the first Sunday to 6pm on the first Monday.

(d) Until 31 January 2027 in the Term 4 school holidays, for one (1) overnight period in weeks 2, 4 and 6 of that school holiday period, starting a 9am on the first day of those weeks ending at 6pm the next night coincident with the weeks [X] and [Y] are spending with their father.

(e) On Father's Day from 9am to 6pm.

(f) On [Z's] birthday from 3pm to 6pm.

(g) From the start of Term 3 in 2027, he shall spend the same time with his father for the same period of time as applies for [X] and [Y] herein.

(Reasons for judgment delivered 15 November 2024)

1. Ground 1 in the appellant's Amended Notice of Appeal filed 19 February 2025 is in the following terms:
   1. The learned primary judge denied the appellant procedural fairness because the terms of Order 7 were unheralded and could not have reasonably been contemplated by the appellant or the respondent.
2. The father's proposal for time with Z is not accurately set out by the primary judge at [29] of the judgment. The differences are not insignificant. The primary judge made orders for less time than even that proposed by the mother.
3. In summary, the proposals of the parties with respect to Z's time with the father were both for alternate weekend time. However, the parties were in dispute about whether there should be time on Tuesdays and there was some minor dispute about start and finish times on the other days that time was proposed.
4. The proposals by the parents were broadly consistent with the recommendations of the single expert who suggested graduated increases in time between Z and his father until 2027 and then for all three children have time with each parent on a week about arrangement from the commencement of the 2027 school year.
5. During final addresses, counsel for the father addressed the primary judge on the differences in the proposals for time between the trial and 2027 in appropriately economical terms, given the relatively small differences between the parties (see Transcript 16 August 2024, p.75 line 40 to p.76 line 12).
6. There was no indication that orders outside of the narrow ambit of the proposals of the parties were being contemplated by the primary judge. The reasons for judgment were consistent with the way in which the case was argued, primarily focusing upon whether or not equal shared time ought to be ordered to commence in 2027, and the issues concerning whether or not the mother should have sole parental responsibility with respect to medical matters.
7. When determining a parenting matter, the Court is not bound by the proposals of the parties: see U v U [2002] HCA 36; (2002) 211 CLR 238 at 263 and 284. However, as was recently restated in Fazil & Fazil [2024] FedCFamC1A 54:
   1. In exercising discretion, judges are not bound to simply select between the competing suites of orders for which the parties contend (U v U [2002] HCA 36; (2002) 211 CLR 238 at 284-285) but, conversely, cannot determine the cause by making orders which are unheralded and could not have been reasonably anticipated by the parties, given the way they chose to contest the cause, as to do so deprives them of procedural fairness (Kearney & McMaster [2024] FedCFamC1A 2; (2024) FLC 94-171; Robertson & Sento [2009] FamCAFC 49 at [138]; Bolitho and Cohen [2005] FamCA 458; (2005) FLC 93-224 at [85]). That occurred here.
8. Following a number of exchanges at the trial about the extent to which the parties could be expected to cooperate in the future when considering whether equal time should be ordered from 2027, the primary judge said:

I won't make an interim order, but the issue is whether I can go as far as you want in 2027 with so much that's uncertain. All I might be able to say is, well, these are the orders that, in the short to mid-term, I can comfortably make. Who knows what happens after that? Leave it to the parties to come back after some family dispute resolution if they both decide it's necessary, which is what the Act would enforce on them because of the time delay.

(Transcript 16 August 2024, p.83 lines 29-34)

1. The respondent relied upon Fiedler & Vitale [2025] FedCFamC1A 7, arguing that the primary judge's comment in addresses was sufficient notice to the parties that his Honour was considering orders that provided less time than the parties proposed.
2. A fair reading of the comment is that the primary judge was referring to the orders he may make for 2027 onwards. It was not a comment that addressed the terms of the orders from the date of trial until 2027. The comment can be contrasted with the primary judge's comment in Fiedler & Vitale (at [34]) where the primary judge refused to make consent orders, clearly signalling the possibility of ordering that the father in that case have no time with the child by saying " ... [o]n the evidence that has been filed, which I have read with great care, there's a serious [triable] case about whether the father is an unacceptable risk". There was no equivalent statement in the present proceedings.
3. It was apparent from the terms of counsel's address that the possibility of orders outside the range presented by the parties was not contemplated, nor would it have been reasonable to expect the court to be considering orders outside of that range.
4. The same problem arose with respect to orders for special time, such as birthdays and Father's Day. The parties had agreed on orders for the children to spend time with the father on the various special days. The respondent provided her Revised Minute of Order (at AB p.428) to the primary judge at the time of final addresses, drawing attention to Order 12 and said, "Order 12 is agreed ..." (Transcript 16 August 2024, p.76 line 9). This is further addressed under Ground 2.
5. The appellant has made out this ground of appeal.

1. The second ground of appeal is:
   1. The learned primary judge erred in failing to provide adequate and sufficient reasons for his decision and in particular:
      1. how he came to the conclusion that 5 nights per fortnight was preferrable to a week-about arrangement as recommended by the Single Expert: and
      2. why no orders were made for special occasions until the start of Term 3, 2027.
2. In Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, 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.

1. A primary judge is not bound by the terms of a family report: Hall and Hall [1979] FamCA 73; (1979) FLC 90-713 at 78,819; Khatri & Khatri [2024] FedCFamC1A 152. Whilst a family report may be powerful evidence, it is only one piece of evidence and does not create some form of presumption: the judge has the statutory obligation to determine the appropriate orders, in accordance with the provisions of the Family Law Act 1975 (Cth).
2. The primary judge had regard to the recommendations of the family report writer, recounting significant parts of the family report writer's evidence at [56]-[63] and identifying seven key points at [64]. The reasons go on to address the primary judge's concerns as to the difficulties the parties had when communicating and their lack of flexibility on occasions (at [66]-[67]). His Honour then noted that the family consultant's evidence must necessarily have been based upon predictions as to the youngest child's development into the future (at [71]) and his Honour's concern that if the parents continue their rivalry for control regarding the children, it may never be in the children's best interest for there to be equal time (at [72]-[76]). His Honour also acknowledges the importance of the father's role in the children's lives as identified by the expert (at [77]). It is clear that the primary judge had careful regard to the terms of the family report.
3. The appellant pointed to a comment by the primary judge that there was no contention that Z was currently ready for equal time, arguing that this misconceived the case as one where the appellant sought equal time immediately (at [65]). A fair reading of the comment in context is that the primary judge was noting that equal time was not yet suitable for the child, a necessary starting point when considering orders to take effect in the future: that is, that the prediction necessary for the future was not limited to possible changes in the parental behaviours, but importantly, for the youngest child, also included changes as a result of child's development. This case did not concern transition arrangements for children that were all presently developmentally ready for shared care, but rather, predictions as to whether the court could be satisfied that the younger child could be ready for shared care at some point in the future and whether the parties were likely to be capable of implementing shared care in the future. Identifying the current position is a logical first step to considering predictions for the future. The appellant has not established that the primary judge erred in this regard.
4. The appellant also argued that the primary judge failed to fully engage with the factual disputes, pointing to evidence concerning text messages and a claim that the respondent had been misleadingly selective in the messages she had presented and other claims that the respondent's evidence was misleading by omission in various respects. These disputes went to the ability of the parties to cooperate, which issue the primary judge addressed. It was not necessary for the primary judge to make specific findings with respect to every factual issue. In the context of the issues in the present case, there was evidence of difficulties in communication between the parties (see Family Report dated 19 September 2023 at [8.15]).
5. A trial judge is not required to set out extensive quotes from the evidence or extensive discussion in order to provide sufficient reasons for the purposes of a judgment. A judgment is not a law review article. The reasons for the trial judge's conclusions are set out in the judgment and sufficient to support the conclusion that his Honour reached. The appellant has not established this ground of appeal with respect to whether or not the children should spend week-about with the parents from 2027.
6. The second part of this ground addresses the question of the orders with respect to special days (the children's and parents' birthdays) which provide for the father to spend time with the older two children on Father's Day (Orders 5(e) and 7(e)). They provide for the older two children to spend time with the father on the father's birthday and each child's birthday (Order 5(d)), however, they only provide for Z to spend time with his father on Z's birthday (Order 7(f)), but not on the father's birthday. Orders relating to special days were set out in detail in the draft orders proposed by the mother in the following terms:

1. In addition to the time that [X], [Y] and [Z] will spend time with each of the Mother and the Father as set out in these Orders, on the following occasions of special significance the children shall spend time with the parties as follows (with these Orders prevailing over all others if a conflict arises):

(a) The parent who does not have care of the children will be entitled to spend 4 hours with all three (3) children on their own birthday(s) at a time to be agreed between the parties, but failing agreement from 3:00pm until 7:00pm; > > (b) The parent who does not have care of the children on the morning of a child's birthday shall spend time with all three children from 3:00pm until 7:00pm on each child's birthday. > > (c) The children will spend Father's Day with the Father and if it is not his usual weekend they will spend time with him from 9:00am to 5:00pm on Father's Day; > > (d) The children will spend Mother's Day with the Mother and if it is not her usual weekend they will spend time with her from 9:00am to 5:00pm on Mother's Day; > > (e) The children will spend time with the Mother and the Father over Christmas as follows (with this order prevailing over all others if a conflict arises): > > 1. In even numbered years, with the Mother from 10:00am Christmas Eve until 2:00pm Christmas Day and with the Father from 2:00pm Christmas Day until 6:00pm Boxing Day; and > 2. In odd numbered years, with the Father from 10:00am Christmas Eve until 2:00pm Christmas Day and with the Mother from 2:00pm Christmas Day until 6:00pm Boxing Day.

1. During submissions counsel for the father said that Order 12 was agreed (see Transcript 16 August 2024, p.76 line 9). Unfortunately, the reasons do not address why it is that the agreed terms for special days were not ordered. The only comment made in the judgment was that:
   1. Holidays and important occasion time, such as Christmas and birthdays, will be prescribed so there is no repetition of recent events about the children's birthdays.
2. There were no reasons provided as to why orders for special occasions were different to those agreed by the parties. In many cases, only very brief reasons are needed for orders relating to special days. However, where the court departs from agreed orders, at least some reasons must be given for that departure. The appellant succeeds on this part of Ground 2 for the same reasons set out with respect to Ground 1.

1. Ground 3 is in the following terms:
   1. The learned primary judge erred in fact by taking into account irrelevant considerations because his Honour:
      1. misunderstood and misdescribed the father's proposal in respect of both medical decision-making and the time [Z] was to spend with him (J [29]); and
      2. found "as a consequence of the parental disputation in 2021, [X] suffered further mild hearing loss" (J [69]) when such a finding was not open on the evidence: and
      3. found that [Z] "is not developmentally mature enough for an equal time order to be now in his best interest" (J [73]) when no such order was sought by either party nor recommended by the Single Expert.
2. Ground 3(a) and (b) address the findings by the primary judge that:
   1. Relatively recently in 2021, the parents were unable to reach quick agreement about some medical treatment for [X] about a tonsillectomy and insertion of grommets.
   2. As a consequence of the parental disputation in 2021, [X] suffered further mild hearing loss. Such loss not being conducive to [X's] wellbeing.
3. The evidentiary basis for this finding is set out earlier in the judgment where the primary judge said:
   1. The parents disagreed initially about what treatment [X] was to receive from her ENT, [Dr B].
   2. It took at least three appointments over the period [...] August 2021 to [...] May 2022 for the father to agree to surgery, with that surgery taking place [in mid] 2022.
4. The parties' accounts with respect to surgery to place grommets in X's ears are different. The mother gave evidence that the father had not consented to the procedure until a later consultation with the Ear, Nose and Throat specialist, whereas the father gave evidence that he agreed to the surgery once the doctor had recommended the procedure (several months after the mother said the doctor recommended the surgery). The surgery took place in 2022. Unfortunately, the only evidence before the Court on this issue, other than the versions of the parties, was letters from the ENT specialist to the General Practitioner, which provided little assistance. For example, one of the letters merely stated:

Thanks for referring [X], who had persistent middle ear effusion compared to the last visit, as there is no improvement of her hearing and she had bilateral dull-looking tympanic membranes ... I have decided to proceed for adenoidectomy and grommet insertion.

(Mother's Tender Bundle, p.7)

1. During submissions, the primary judge accepted that there was nothing in writing about deterioration of hearing (Transcript 16 August 2024, p.80 line 9). Counsel for the father had made submissions pointing to the specialist's reporting letter back to the child's GP which contains no statement that the child had suffered hearing loss. However, the appellant had agreed that there was some further mild hearing loss when giving evidence (Transcript 16 August 2024, p.31 lines 14-16).
2. Counsel for the appellant also pointed to the agreement by the mother in cross-examination that it was the father's actions that caused the follow up appointment, rather than that appointment being initiated by the mother and a text message in June 2021 (Exhibit C) where the father expressed his concerns about the proposed procedure to the mother. Counsel also made submissions referring to other issues that were argued to have borne negatively on the mother's credit.
3. An appeal court should not interfere with a finding of fact if it was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296; Gronow v Gronow (1979) 144 CLR 513). Appellate judges are in a "permanent position of disadvantage as against the trial judge" in assessing the evidence and the credibility of witnesses (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [77]). Thus, it has been said that where findings are based in part upon assessment of the witness in the witness box, an appeal court should not interfere with those findings "unless they are demonstrated to be wrong by "incontrovertible facts or uncontested testimony", or they are "glaringly improbable" or "contrary to compelling inferences".": (see Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at [43] and Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 at [55].
4. The trial judge had the opportunity to see and hear the parties give evidence in the witness box. The documentary evidence is not necessarily inconsistent with the version given by the mother. That is, there is nothing in the documentary evidence to show that there was no hearing loss detected early on, nor that the father had not objected to surgery at that point. The uncontested parts of the evidence are not inconsistent with the mother's version that the father later reflected upon his position and sought another appointment with the specialist. The appellant is unable to show that the mother's version was so improbable that the primary judge must have misused his advantage in seeing the parties give evidence in reaching his conclusions. The matters that bore negatively on the mother's credit were not sufficient to make the primary judge's finding unsustainable. The appellant has not made out this ground.
5. Ground 3(c) complains that the statement by the trial judge at [73] demonstrated an error in fact. The primary judge said:
   1. That the parents are rivals for control was the opinion of the Court Child Expert (CCE) arising from her engagement with them and is also evidence from material in the parents' affidavits. I am consequently comfortable in making a finding that [Z] is not yet developmentally mature enough for an equal time order to be now in his best interest. The CCE talks about managing the "gap in time" between [Z's] time with his parents with smaller gaps in time being recommended.
6. This statement is not an error in fact as it is conceded by both parties. The real question is whether it was an irrelevant consideration (see House v The King (1936) 55 CLR 499 at 504-505). The primary judge notes at [74] that "[t]he father's case grapples with this by not seeking equal time until early 2027" before going on to consider whether or not it had been established to the requisite standard that equal time would be appropriate by 2027. Whilst neither of the parties' cases was that Z was developmentally ready for shared time, this fact was necessarily the starting point of considerations about what orders should be made for Z's time now and into the future (for the reasons set out at [23]).
7. The appellant has not shown that the trial judge erred in this regard.

The learned primary judge erred in fact by failing to take account of material considerations because:

1. the Single Expert gave evidence that it was in [Z's] best interests to have increasing time with his father until he commenced the school year in 2027 when he could then spend the same time with his father as his sisters; and
2. the mother also proposed that [Z's] time be increased over time until the start of the 2027 school where he would commence to spend the same time as his sisters.

1. As the appellant has succeeded with respect to these orders on Ground 1, it is unnecessary to deal with Ground 4(a) and (b).

1. As the appellant has succeeded with respect to the orders concerning the youngest child until 2027, those orders must be set aside. The appellant has not succeeded in the challenge to the other orders. The error with respect to Orders 7(a)-(f) does not impact upon the other orders made by the primary judge. It is therefore appropriate to set aside only Orders 7(a)-(f) of the orders made by the primary judge on 15 November 2024.
2. Both parties were insistent upon a rehearing, rather than this court re-exercising the discretion of the primary judge. The issues were narrow at the time of the hearing and not the subject of specific findings of the primary judge. The respondent was unrepresented on the appeal. It is necessary to take into account changes in circumstances since the time of the original trial: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172. Unfortunately, in the circumstances of this case, and in the absence of the consent of the parties to this court re-exercising the discretion with respect to this issue, the question of Z's time with the appellant until the commencement of Order 7(g) of the orders of 15 November 2024 must be remitted for rehearing. Those orders will be set aside on the first date that the matter is listed before a judge following remittal, at which point interim orders can be considered.

1. As the orders which have led to the appeal are errors of law by the primary judge, it is appropriate to grant the appellant a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal and the rehearing. As the respondent was unrepresented, she had incurred no recoverable costs and therefore it is not appropriate to issue a certificate to the respondent.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.