AMC & JLT

[2006] FamCA 627

[2006] FamCA 627

JFAMCJLT

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 131 of 2006
File No. PAM 230 of 2005

IN THE MATTER OF:

AMC

Appellant/Father

- and -

JLT

Respondent/Mother

REASONS FOR JUDGMENT

(EX TEMPORE)

BEFORE:  JUSTICE I R COLEMAN
HEARD:  23^rd day of June 2006
JUDGMENT:  23^rd day of June 2006

APPEARANCES:                 The appellant father appeared on his own behalf.

The respondent mother appeared on her own behalf.

Mr Meehan, Solicitor, (instructed by Meehan Legal, DX 25820 Camden) appeared on behalf of the children.

Name of Appeal  AMC & JLT

Appeal Number  EA 131 of 2006

Date of Appeal Hearing                   23^rd day of June 2006

Date of Judgment  23^rd day of June 2006

Bench  Coleman J

Catchwords:   Appeal against orders of Federal Magistrate allowing the respondent to relocate the residence of the child of the parties.

No relevant error of fact or law demonstrated - Federal Magistrate not found to have erred in exercise of discretion - House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 followed.

Appeal dismissed.

1. This is an appeal against orders made by a Federal Magistrate on 23 February 2006 in proceedings between the appellant, and the respondent.  The appellant is the father of the child the subject of the proceedings, which the Federal Magistrate determined on 23 February, that child being KL, who was born on 15 August 1996 and who was 9 years of age at the date of judgment.  The respondent to the appeal is the child's natural mother.

2. By his Notice of Appeal the appellant challenges the orders which were made by the Federal Magistrate and, in the course of his Notice of Appeal in some six numbered paragraphs, set out the orders which he asserted this Court should make in lieu of those made by the learned Federal Magistrate. 

3. The orders of the Federal Magistrate provided that the respondent be able to relocate the residence, or usual place of residence, of the child on the terms and conditions set out in her Honour's orders.  In particular, her Honour's orders provided that the respondent be permitted to relocate KL away from New South Wales, consequent upon the posting of her fiancé, Mr F, in his position in the Australian Army.  Her Honour's orders provided that, pending the posting of Mr F (the respondent’s fiancé), the child, KL, live with the appellant each alternate weekend from after school Friday to the following Monday morning, and on the other alternate week from the cessation of school Friday to 6 pm Saturday.  The child was otherwise to reside with the respondent.

4. Her Honour's orders also provided that the parties share school holiday periods equally and that the mother, the respondent, have unimpeded time with KL on the fourth weekend of each calendar month.  Her Honour's orders then provided that upon the respondent being informed of her fiance's designated posting, she notify the appellant in writing of the anticipated relocation date, suburb and street address at which the child would be living, and local school at which the child will then be enrolled.

5. A series of orders were then made providing, in considerable detail, for contact between the appellant and KL in the event of the mother relocating within Australia (order 11 and following) or in the event of the posting of MR F outside of Australia or in England (as appears from order 17 and following).  The orders also provided for the payment of travel costs associated with contact, it being clear that in the event of the respondent relocating the child's residence to the UK, the respondent would be responsible for the return air flight of the child, and that the child would be with the father during the UK school holidays, which the orders expressed to commence in June and cease in August.

6. For his part, the appellant seeks that in lieu of those orders, this Court should order that KL not live outside of Australia, that the father be allowed to move close to KL, so he could keep contact with KL and have his weekend custody, that he be able to contact KL on any day, that KL spend half of all of holidays with her father, and birthdays with her cousins, that the appellant have the ability on 48 hours' notice to see KL at any given time, rather than 21 days.  Finally the appellant sought that the father "have his parenting rights put back so that the father and KL can remain in New South Wales so KL can have a normal child's life".  In the course of his oral submissions before this Court the father sought that an order for residence of KL be made in his favour. 

7. The appellant has appeared in person and whilst his genuineness cannot be doubted, as his written material and oral submissions make clear, with respect to him, he has little understanding of the appeal process or what the proceedings before the Court today are about. 

8. He informed the Court that Legal Aid had assisted him at trial but had declined to assist him before this Court.  It is regrettable that the appellant has been unrepresented but no reflection on Legal Aid that he has not.  As will emerge, notwithstanding that the appellant has not been represented, the Court has of its own motion examined all such material as has been placed before it by the appellant in order to determine whether, notwithstanding the deficiencies in the appellant's presentation of his appeal, his appeal may have some merit. 

REASONS FOR JUDGMENT OF THE FEDERAL MAGISTRATE

1. It is appropriate to refer to the reasons for judgment of the learned Federal Magistrate.  They were delivered in writing on 23 February 2006, the trial of the proceedings having occurred on 21 and 22 February 2006.  Significantly for present purposes, the appellant was represented before the learned Federal Magistrate and, it is apparent from the Court record, was represented by counsel known to the Court to be counsel of experience and competence.

10.  The learned Federal Magistrate referred to the proceedings with which she was concerned.  She outlined the competing applications in the early passages of her judgment.  Nothing to which this Court has been referred suggests that any error was there entailed.  Her Honour recorded accurately what each party was seeking. 

11.  Her Honour then proceeded, under the heading "Evidence," to refer to the evidence which was before her, included in which was evidence from a Court Counsellor in a report.  Neither party sought to, or did, cross-examine the expert who prepared such report.  Each of the parties gave evidence and was cross-examined, as was Mr F. 

12.  Her Honour set out under the heading "Background" a series of matters, none of which appears from anything presented to this Court to have been other than undisputed fact or, to the extent that there may have been disagreement in that regard, other than factual matters in respect of which her Honour was entitled to make the findings which she did.  Importantly, her Honour outlined the evidence of the parties in relation to the essential issues which each was raising. 

13.  Under the heading "Child's wishes", her Honour made a series of findings which, it is clear, were substantially based upon the unchallenged expert evidence before her.  Importantly, particularly in the light of the number of submissions made by the appellant to this Court, her Honour recorded that the child had expressed "that she does not want to move schools and wants things to stay the same".

14.  The learned Federal Magistrate then at paragraph30 acknowledged "some concern as to the weight I would attach to KL's wishes expressed to her father in his home", for reasons which she then gave.  Her Honour acknowledged, as was undoubtedly appropriate, that the child KL was very important to the appellant, that he "loves her and she clearly is attached to and loves her father".

15.  The learned Federal Magistrate then referred to a number of matters and expressed some concerns about the articulation of wishes by the child by reason of circumstances involving the appellant, to which her Honour referred in some detail.  She acknowledged that a move may cause disruption and upset to the child.  Her Honour further acknowledged that KL had:

… clearly been imbued at her father's home with the concept that moving around will make you dumb at school and thus her wishes on this issue have been tainted and have only a minimal bearing on my decision.

16.  Reference was then made to KL's statement that "if she had to leave her school and move outside of New South Wales her life would be ruined".  That statement the child made to the Court expert.  Her Honour considered such statement to be "a very adult concept" for a child of 9 years and closely aligned with the father's opinion stated to the Court expert, "that his life would be destroyed if his daughter left New South Wales".

17.  Whilst her Honour found the appellant father's actions in that regard inadvertent and unintentional, she was satisfied that the child had "overheard these conversations and she has taken it on board".  Reference was made to a number of similar matters, in paragraph 38 of her Honour's reasons for judgment.

18.  Her Honour then referred again to the child's stated wish not to change school, not to leave her father, to want equal time with her father, to want everything to stay the same and to spend more time with her father.  She concluded that such statements had been:

… tainted by the spilling over to KL of her father's understandable difficulties at the prospect of his daughter being removed, so that her weekly contact with him would not continue.

19.  Ultimately in relation to wishes, her Honour was of the opinion that the child's wishes,

.. have been influenced by the father's clear need to have his daughter close to him and available to him on a weekly basis.  Thus the weight I can attach to those expressed wishes is minimised.

20.  The parenting capacity of each party was examined by the learned Federal Magistrate.  For reasons which she set out in some detail, her Honour was persuaded that the respondent and her partner had somewhat more to offer in that regard than did the appellant, notwithstanding the number of positive findings which she made in that regard.  Paragraph 46 of her Honour's reasons for judgment is particularly significant in that regard as are the paragraphs which follow. 

21.  Her Honour referred to the relevant legal principles and whilst there is no suggestion by the appellant that the principles there referred to were in any way erroneous, that of itself, with great respect to the appellant, is of no significance.  For its own part the Court, having examined the matter, is satisfied that the learned Federal Magistrate correctly stated the relevant law which applied to the proceedings the determination of which she was charged with, and at paragraph 53 translated those legal principles accurately into the context of the facts of the case as found by her.

22.  In accordance with both the statutory provisions and the authorities, the learned Federal Magistrate examined the relevant s 68F(2) factors.  As her Honour made clear in the course of so doing, the issue before her was difficult and clearly one which did not permit any ready resolution, or indeed any resolution which would not cause grief and hardship, both emotional and potentially financial, to the party who was less successful.  There can be no doubt that the learned Federal Magistrate was acutely aware of, and referred to, the implications of allowing the mother to relocate KL's residence on the one hand, and refusing to do so on the other.

23.  The reasoning at paragraph 60 summarises the broad thrust of the learned Federal Magistrate's conclusions.  She referred to there being an enormous change for KL if she moved interstate or to England.  She clearly stated the impact of such a move for KL in terms of a change of school and environment and, perhaps most importantly given what appears to be the thrust of the appellant's assertions in this Court, the impact of such move on the child's relationship with her father.  Her Honour continued that analysis in some detail and under the heading "Findings" at paragraph 64, provided the reasoning which led her to conclude as she did in relation to the outcome of the proceeding. 

24.  Her Honour recorded that she had:

… found that not permitting the mother to relocate with her husband and the resultant diminishing of the mother's parenting capacity arising as a result of such a decision would have a greater negative impact on KL then [sic] the loss she will experience on the separation from her father, friends and school consequent upon her relocation.

Reasons why that was so were then given.  The learned Federal Magistrate then considered the consequences for so concluding in terms of contact orders appropriate to be made which, consistent with that reasoning, her Honour then in fact made. 

RELEVANT LAW

25.  The law which governs this appeal is not in doubt.  It does not require restating in detail for present purposes.  The High Court in House v The King (1936) 55 CLR 499 set out the relevant legal principles. There has never been any departure from the statement of principle there provided. Their Honours said, and to this day have continued to say, and intermediate appellate courts such as this have sought to apply the principle, that:

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-5)

26.  In the 1979 decision of the High Court in Gronow v Gronow (1979) 144 CLR 513, Stephen J, in the passage which is generally quoted in this context, reiterated the difficulties as a matter of principle which confront an appellant such as the appellant in this appeal. His Honour there said at 519-20:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

27.  As with the judgment of the High Court in House v The King, twenty-seven years later the High Court has not departed from that statement of principle.  It is apparent from those authorities that the task which confronts the present appellant is one of Herculean proportions.  Added to that his lack of legal training and his inability to put the transcript (which is able to be obtained) before the Court, renders his prospects of success on appeal remote. 

28.  The learned Federal Magistrate referred to the decision of the High Court in U v U (2002) 211 CLR 238. That case leaves little doubt for the proposition that an order of the kind her Honour made, provided no other error was thereby entailed, was one which could have been made in the exercise of her discretion.

29.  The Chief Justice and McHugh J agreed with Hayne J who recorded in U v U at 286 that:

… it must not be assumed that one parent [in this case, the father] cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them. 

THE GROUNDS OF APPEAL

30.  The appellant has prepared and relied upon three pages of submissions.  With great respect to him, whilst those submissions may have been matters which would require the careful scrutiny of a trial judge, with respect to him, they do not advance the appellant's case in this Court.  They are no more than submissions in reliance upon which a single judge, having heard evidence and made findings, may or may not have been able to accede to the appellant’s claim at trial.

31.  As the Court has endeavoured, probably without success, to explain to the appellant, that is not the nature of this exercise.  It is not a second opportunity to persuade this Court on the evidence to do something different.  A much higher onus than that is imposed upon the appellant.  He must demonstrate error described by the High Court in House v The King, that task being more difficult by virtue of the realities of life explained by Stephen J in Gronow. 

32.  It is apparent from the oral submissions of the appellant that his primary complaints are that he wishes his daughter to stay in New South Wales.  He does not want her to go to England, he does not really want her to leave New South Wales, but could accept a move to Melbourne.  He submits that there is nothing in the UK for the child, that all the family are in New South Wales and that the child could only be disadvantaged by being uprooted to go to the UK.  The appellant asserted that the learned Federal Magistrate's decision did not accord him his "father's rights".

33.  It would be a simple matter for the Court to dispose of the appeal at this point, on the basis that there is disclosed by the appellant simply nothing which, consistent with authority, would entitle this Court to interfere with the learned Federal Magistrate's decision.  Regrettably, by not putting a transcript before the Court, the appellant has denied the Court the ability to examine for itself what occurred at trial, in order to see whether, notwithstanding his inability to articulate such grounds, he may have valid grounds for challenging the learned Federal Magistrate's decision.

34.  Doing the best it can, the Court has looked at the affidavit material, it has closely read the learned Federal Magistrate's judgment and can see nothing as a result of that process which suggests the likelihood of appellable error on the part of the learned Federal Magistrate.  It is clear, and the learned Federal Magistrate was not in the slightest doubt, that the decision to be made in this case was a difficult one.  Her Honour recorded fairly, thoroughly and in detail, the consequences of deciding to either permit or refuse relocation.  To use the colloquial, it was a case which on the evidence could have “gone either way”.  The fact that it did not go the way the appellant hoped it would not does not, without a great deal more, demonstrate that the decision was erroneous in law.

35.  The learned Federal Magistrate gave detailed reasons for concluding as she did in relation to the very difficult issue she had to decide.  She was clearly aware of the child's attachment to her father and the impact on that attachment of permitting relocation.  Her Honour’s decision cannot be said to have been one which was not open to her.  She may have reached a different conclusion.  That is not the test.  Such evidence as this Court has found for itself suggests that the discretion was reasonably exercisable in the way that her Honour exercised it.  No relevant error of fact has been demonstrated so that the exercise of discretion cannot be said to have miscarried by virtue of errors of fact.

36.  No wrong principle has been shown to have been applied.  The challenge to the weight afforded the evidence to which Stephen J referred in Gronow has not been made out.  Regrettably for the appellant, this Court has only one option in the circumstances and that is to dismiss his appeal, it being an appeal which has not been shown to have merit in accordance with long established and undisputed appellate principles laid down by the highest court in this land.  In result the Notice of Appeal filed 23 March 2006 is dismissed.

I certify that the preceding
36 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 18/07/06