Mother Opposes Father's Sole Parental Responsibility

Barlow & Sellers [2022] FedCFamC1A 22 (18 February 2022)

Orders were made providing for the father to have sole parental responsibility for the parties’ two children. The mother lodged an appeal from the final parenting orders made.  The appeal was listed to afford the appellant the opportunity to be heard as to why the incompetent grounds of appeal should not struck out. 

Facts:

Orders were made providing for the father to have sole parental responsibility for the parties’ two children, for the children to live with the father, and for the children to only communicate electronically with the mother. 

The orders expressly make no provision for the children to spend time with the mother.  The mother lodged an appeal from the final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).  The appeal was listed to give the mother the chance to submit why one or more of the apparently incompetent grounds of appeal should not be struck out.

The mother filed written submissions entitled “Why the Appeal should be Upheld” which was a discursive commentary on whether she should have a litigation guardian appointed for her in the appeal, her denial of procedural fairness by the primary judge, the inadequate consideration of evidence at trial, judicial bias, the conduct of the “family assessment” during the litigation, the treatment of evidence concerning family violence, the primary judge’s “direct discrimination” against the children by reason of “their disability”, and her application for costs of the appeal. 

The mother alleges the primary judge:

1.  made “illegal” orders (Ground 3);
2.  engaged in “extreme maternal alienation” (Ground 6);
3.  “breached multiple legislation” - including the “Anti-Discrimination Act of SA 1984”; and                                                the Disability Discrimination Act 1992 (Cth) (Ground 7);
4. perpetrated “direct discrimination” against the mother and children by reasons of orders made in February 2020, long before the appealed orders in December 2021 (Ground 8);
5. perpetrated “direct discrimination” during the trial in November 2020 (Ground 9) and at some indistinct point during the trial (Ground 10);
6. wilfully breached s 65 of the Act (Ground 11);
7. breached legislation, including the “Data Communication Act 2013” and the “Data Survallance Act SA 2015 (sic)” (Ground 11);
8. “fail[ed] to uphold and address” s 60NAF of the Act before the trial commenced (Ground 12);
9. made orders which “endanger the lives of children” (second misnumbered Ground 12);
10. “fail[ed] to abide by and uphold established case law precedents, including Asplund and Rice 1975” (Ground 14); and
11. “fail[ed] to take action against collusion between the ICL and the counsel for the father” (Ground 15).

Issue:

Whether or not the appeal should be granted.

Applicable law:

Disability Discrimination Act 1992 (Cth) - relied upon by the mother in asserting that the primary judge erred in making its orders.

Analysis:

The parenting orders were not “illegal”, as jurisdiction existed under ss 69E and 69H of the Act and they were made within statutory power.  The bare allegation that the primary judge, by making the appealed orders, engaged in “maternal alienation” is not a recognised species of appealable error. 

When exercising discretion under Pt VII the Act, the primary judge was not bound by the terms of any Federal or State anti-discrimination legislation and, in any event, the appeal is confined to the orders made in December 2021 and does not extend to orders made at earlier stages of the proceedings. 

The cited legislation dealing with “data communication” and “data surveillance” does not seemingly exist and, even if it did, the manner in which it was breached was not made plain.

The Act does not contain either ss 65 or 60NAF, so the alleged failure to correctly apply such non-existent provisions is misguided.

The contention that the appealed orders endanger the children’s lives is a statement of the mother’s belief, but not a competent ground of appeal. 

The guideline within Rice v Asplund [1978] FamCAFC 128; (1979) FLC 90-725 certainly had no application here because the primary judge heard the parties’ applications on substantive merit.  The similarity of the applications made in respect of the children by the father and the ICL did not of itself prove any collusion between them or any lack of impartiality by the ICL but, in any event, the mother did not apparently ask the primary judge to do anything in relation to the alleged collusion and so cannot complain of it in the appeal.

Conclusion:

All but Grounds 1, 2, 4, 5 and 11 of the Amended Notice of Appeal filed on 27 January 2022 are struck out.  The Appeal Registrar will make procedural orders for the appeal to progress to hearing on that confined basis.

#Appeals