Edelman and Ziu (No 2) - [2010] FamCAFC 236

FAMILY COURT OF AUSTRALIA

EDELMAN & ZIU (NO. 2)

[2010] FamCAFC 236

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate failed to follow the legislative pathway under s 65DAA – Whether the Federal Magistrate failed to provide adequate reasons – Where ‘best interests’ and ‘reasonable practicability’ were considered for both equal shared time and substantial and significant time – Reasons adequate – No appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate erred in failing to make adverse credit findings about the mother – No appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Parenting Orders – Whether the Federal Magistrate erred in failing give proper weight to the matters set out in s 60CC(3)(d), (g) and (i) – Discretionary judgment – Where weight afforded to the child’s relationship with his half-brother, his mother’s Chinese heritage and the father’s parenting capacity were all open to the Federal Magistrate – No appealable error established.

FAMILY LAW - APPEAL – COSTS – Where father wholly unsuccessful – The father to pay the mother’s cost of and incidental to the appeal – The father to pay the Independent Children’s Lawyer’s costs.

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3)(d),(g) and (i), 61DA, 65DAA

AMS & AIF (1999) 199 CLR 160
Bennett & Bennett (1991) FLC 92-191
Gronow & Gronow (1979) 144 CLR 513; (1979) FLC 90-716
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378
In the Marriage of Goudge (1984) 9 Fam LR 500
In the Marriage of Hall (1979) 5 Fam LR 609
MRR & GR (2010) 240 CLR 461
Pettitt v Dunkley [1971] 1 NSWLR 376
Rollings v Rollings (2009) 230 FLR 396
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Mr Edelman

RESPONDENT:

Ms Ziu

INDEPENDENT CHILDREN’S LAWYER:

Christine Lovell-Jones

FILE NUMBER:

LEC

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

24 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Boland, O’Ryan & Le Poer Trench JJ

HEARING DATE:

4 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1227

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Laws

SOLICITOR FOR THE APPELLANT:

McCarthy Durie Ryan Neil

COUNSEL FOR THE RESPONDENT:

Ms Smith

SOLICITOR FOR THE RESPONDENT:

GJ Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gallloway

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission NSW

Orders

The appeal is dismissed.
The father pay the mother costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004 (Cth).
The father pay the Independent Children’s Lawyer’s costs in the sum of $3,492.50.

IT IS NOTED that publication of this judgment under the pseudonym Edelman & Ziu is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 13 of 2010
File Number: LEC 1 of 2009

Mr Edelman

Appellant

And

Ms Ziu

Respondent

And

Christine Lovell-Jones

Independent Children’s Lawyer

Reasons for Judgment

Introduction

This is an appeal by Mr Edelman (“the father”) against certain parenting orders made by Federal Magistrate Slack on 22 December 2009 in proceedings between himself and Ms Ziu (“the mother”). The orders the subject of the appeal are orders that the parties’ only child, (“the child”) who was aged six at the date of the trial, live during school term with the father for two weekends in each three weekend cycle, and live with the mother at all other times. The father also appeals the property orders made by the Federal Magistrate (Orders 21-29 inclusive) but his amended Notice of Appeal filed 2 July 2010 contains no grounds of appeal challenging the property orders.
The appeal was opposed by the mother. Her position was supported by the Independent Children’s Lawyer (“the ICL”).
We have determined that the appeal should be dismissed. These are our reasons for that decision.
The father’s counsel relied on five grounds of appeal Those grounds may be summarised as follows:
That the Federal Magistrate erred:
·in failing to follow the legislative imperatives contained in s 65DAA of the Family Law Act 1975 (Cth) (“The Act”) (no challenge was raised by the father to his Honour’s order that the parties should have equal shared parental responsibility for the child);
·by failing to provide adequate reasons;
·by failing to make adverse credit findings about the mother (it was asserted this “anterior error” resulted in his Honour’s findings in respect of “reasonable practicality” being flawed);
·by acting on wrong principle in reaching findings under s 60CC(3)(d),(g) and (i); and
·by giving improper weight to the findings made in respect of those sub-sections.
We will set out some brief background material before turning to deal with each of the topics agitated by the father’s counsel. It is convenient that we group the first two and the last two identified challenges together, as arguments in respect of those challenges substantially overlap each other.
We take this opportunity to note that an issue arose before us as to whether certain written submissions prepared on behalf of the father were before the Federal Magistrate. A preliminary search of the Federal Magistrate’s file did not reveal written submissions on both property and parenting issues identical to those in the Appeal Book, although one set of written submissions handed up to the Federal Magistrate on the last day of the hearing by the father’s counsel were located.
At the conclusion of the hearing we afforded the parties the opportunity to inspect the Federal Magistrate’s Court file, and to advise us by 6 August 2010 if it was still in dispute that the submissions had been wrongly included in the Appeal Book. On 5 August 2010 we received notification from the mother’s solicitor who indicated that the mother’s position remained that we should disregard the submissions as they were not before the Federal Magistrate, and should not have been included in the Appeal Book. On 5 August 2010 the father’s solicitors wrote and said, inter alia,
We refer to the Appeal hearing on 4 August 2010 and the query regarding the Written Submissions prepared on behalf of the Father at Final trial in relation to children’s issues.
Having reviewed our file, and noting that our firm were not retained as Solicitors upon the record for trial, we are regretfully unable to provide any further assistance to the Court regarding this issue.
The ICL had, prior to the hearing of the appeal, indicated that she had appeared on the final day of the hearing by telephone from Lismore, and had not been served with the written submissions appearing in the Appeal Book.
As foreshadowed at the hearing, and as a result of the correspondence received, we disregarded the written submissions directed to the parenting orders contained in the Appeal Book as we could not be certain they were before his Honour.

Background

The following background is found in the Federal Magistrate’s reasons and is not controversial.
The father was born in September 1960 and was aged 49 years at the hearing before the Federal Magistrate.
The mother was born in March 1967 in China and was aged 42 years at the date of the hearing. She travelled to Australia in December 2002 after being introduced to the father via the internet.
The parties married in February 2003 and they separated in November 2008.
The child was born in February 2004.
The father has a daughter from a previous relationship. The father maintains contact with her, but not on a regular basis.
The mother was previously married. She has one child of that marriage, a son F. F was born in August 1994 and was aged 15 years at the date of the hearing. The mother separated from F’s father when he was about 6 years of age. For approximately 12 months after separation F lived with his mother, and then, by agreement between his parents, lived with his father until early 2008 when he moved to Australia to live with the mother.
F lived with the parties until May 2008. F had significant difficulties in adjusting to the change in his living arrangements caused by the move to Australia.The father was not happy with the decision to have F as part of the household, and their relationship was “never successful”. After a physical confrontation F moved to Brisbane to attend a State high school, and arrangements were made for him to live with a home-stay family in Brisbane. The home-stay was not successful, and there were “significant” concerns about his behaviour in the household. F moved to a State High School in D, a suburb of Brisbane, and resided with a Chinese home-stay family from the end of 2008 until January 2009. Thereafter he was cared for by the mother and his maternal grandparents.
During the parties’ relationship they lived for a short period on the Gold Coast and thereafter resided in L, a costal town in northern New South Wales. Neither party engaged in paid employment during their cohabitation, and both were involved in the care of the child.
The parties separated in November 2008. Immediately after separation the child remained living with the father. On 31 March 2009 Slack FM made interim orders by consent which provided for the child to live in an equal shared care week about arrangement.
Subsequent to separation, “for much of 2009” the mother divided her time between L and Brisbane. During the week that the mother had the care of the child she lived in a women’s refuge in L. In the other week she lived in Brisbane and cared for F.
The mother commenced proceedings in the L Local Court in December 2008 for parenting orders in respect of the child. She amended that application first in March 2009 and later in October 2009 to seek both parenting and property orders. By the time of the hearing before the Federal Magistrate the mother sought orders that the child live predominantly with her in Brisbane, and during school terms spend three weekends in four with the father. The father sought orders that the child continue to live in L, and in the event the mother chose to remain living in L, that the child live with the parties in a “week about” shared care arrangement. In the event the mother lived in Brisbane, the father proposed the child live with him and spend time with the mother at least each alternate weekend and for one half of school holidays.

The assertion the federal magistrate failed to follow the legislative imperatives of section 65daa. Failure to provide adequate reasons

Ground 1
The primary judge acted on wrong principle insofar as his Honour failed to follow and apply the legislative pathway under Pt VII of the Family Law Act 1975 (Cth).
Ground 2
The primary judge erred insofar as his Honour failed to provide any or adequate reasons.

The father’s counsel submitted that the Federal Magistrate “failed to properly apply the analytical framework in his consideration of s 65DAA at [90] - [94] of his Honour’s reasons”. Alternatively, it was argued he had failed to give adequate reasons for his consideration of the statutory imperatives contained in s 65DAA.

The Federal Magistrate’s reasons

The Federal Magistrate commenced his reasons by first setting out each party’s respective proposals. Having recited relevant background facts in paragraphs 9 to 25, under a heading “Legal principles”, the Federal Magistrate discussed the framework applicable under the Act in respect of making parenting orders.
The Federal Magistrate then set out his conclusions in relation to the primary considerations (s 60CC(2)) and thereafter explained why he had found it was important for the child that he have a meaningful relationship with both his father and the mother. He found that there was no need to protect the child from being exposed to the risk of family violence, abuse or neglect.
Thereafter the Federal Magistrate considered and weighed each of the relevant additional considerations (s 60CC(3)). We will return later to consider the Federal Magistrate’s findings about certain additional considerations when we deal with grounds 4 and 5. It is sufficient for us to note at this point in his reasons the Federal Magistrate turned to consider s 61DA (the presumption of equal shared parental responsibility) recording, in paragraph 81, as follows:
In this case, having regard to findings I have made, I do intend to apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child for the following reasons.
At paragraphs 83 to 86, the Federal Magistrate set out the approach he would take (and which is mandated by the legislation) as follows:
In this case, one of the parenting orders I propose to make will be that the parents are to have equal shared parental responsibility for the child.
Accordingly I am required by s.65DAA to consider whether to make orders that the child shall spend equal time, or substantial or significant time with each parent.
I will consider therefore whether the child spending equal time with each of the parents would be in the best interests of the child and whether it is reasonably practicable.
If I am not satisfied that the child should have equal time with their parents, I will consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and whether it is reasonably practicable.
Under the heading “Decision – Discussion and Conclusions”, the Federal Magistrate explained, at paragraph 87:
The conclusions and findings that I have made in relation to the primary and additional considerations form the basis for my considerations about the parenting orders that I intend to make.
Having recorded the advantages each party asserted their respective proposal had for the child, the Federal Magistrate explained it was necessary for him to consider whether the child could spend equal time with both parents and if such an arrangement would be in his best interests.
Having concluded that he was not satisfied that the mother would remain living in L if the child was to live in that town, the Federal Magistrate, in paragraph 93, found it was not “practicably possible for a week about arrangement to continue”. At paragraph 94 his Honour found it was in the child’s best interests that he live predominantly with the mother. This finding implies his Honour rejected an equal shared parenting time order as in the child’s best interests.
In determining to make the orders which he did, which we have already noted are for the father to spend two weekends out of every three with the father during school term, the Federal Magistrate said his reasons for reaching that conclusion as being in the best interests of the child were:
·because of his concerns about the father’s overall parenting ability;
·because of the rigidity in the father’s thinking and parenting style and the impact that may have on the child’s overall development;
·that the child’s half-brother would be an important relationship with him in the future;
·that the child had sufficient resilience to manage adjustments associated with the change in school and change in community;
·that the child would have a more balanced exposure to both his Chinese and Australian cultures if he lived in the mother’s household rather than the father’s household;
·the mother was child focussed and would appropriately balance her work and parenting responsibilities; and
·the recommendation made by the ICL and the Family Consultant that the child live with the mother.
At paragraph 98 of his reasons, the Federal Magistrate addressed the question of the practicability of the orders proposed. His Honour found it was approximately two hours driving time between the father’s household and the mother’s household. The Federal Magistrate concluded it was more important that the child spend weekend time during school term with the father than the mother. Thus, it is clear the Federal Magistrate inferentially had regard to the fact that midweek time would not be reasonably practicable, and he therefore found it would be in the child’s best interests, having regard to his age, to spend two weekends out of three with the father during school term, as well as block holiday contact.

The law

In MRR & GR (2010) 240 CLR 461 the High Court discussed the mandatory nature of the provisions in s 65DAA when an order for equal shared parental responsibility is made or proposed to be made.
At paragraph 13, French CJ, Gummow, Hayne, Kiefel and Bell JJ said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
Later, at paragraph 15, their Honours explained as follows:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
It is useful, at this point, we also refer to the well known authorities on the provision of adequate reasons (See Rollings v Rollings (2009) 230 FLR 396, Bennett & Bennett (1991) FLC 92-191, Pettitt v Dunkley [1971] 1 NSWLR 376, Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

Discussion

In this case there was no dispute about the parties’ competing proposals.
An overall reading of the Federal Magistrate’s reasons disclosed that he carefully weighed and balanced each of the relevant matters in s 60CC(2) and (3) in determining it was in the child’s best interests that he live with the mother and not with the father.
As far as the father’s proposal that the child live either in a week about arrangement or predominantly with him, the Federal Magistrate was not satisfied the mother would remain residing in L and it was therefore not reasonably practicable for a week about arrangement to continue (paragraph 93). In reaching that conclusion the Federal Magistrate made it clear that he relied on matters set out earlier in his reasons, which included his findings in paragraphs 56 and 57. There his Honour accepted the mother’s evidence about her ability to support the family financially, and that he would have a balanced exposure to both Chinese and Australian cultures if he lived with the mother.

In summary, we are satisfied that the Federal Magistrate looked at the reality of the situation and concluded it was in the child’s best interests to live with the mother and not reasonably practicable for the mother to live in L. Those findings precluded the Federal Magistrate considering an equal shared time parenting arrangement.
The Federal Magistrate’s discussion on whether substantial and significant time was in the child’s best interests and was reasonably practicable can be found in paragraph 98 of his Honour’s reasons. It is clear that as the travelling distance between the two households was of approximately two hours duration, it was not reasonably practicable to make an order for midweek time and the Federal Magistrate found, given the child’s relatively young age, he should spend two weekends out of three with the father.
We take this opportunity to note that the Federal Magistrate’s reasons were delivered prior to the High Court decision in MRR & GR. Having had the benefit of the High Court’s explanation of the requirements of s 65DAA it may be noted that the structure of his Honour’s reasons in respect of this section could, in hindsight, have been set out with greater clarity if drafted with the benefit of the High Court’s reasons for judgment.
We are satisfied, however, that the Federal Magistrate did consider the two questions he was mandated to answer in s 65DAA, (best interests and reasonably practicable) in respect of both an equal shared time arrangement and a substantial and significant time arrangement. The Federal Magistrate’s path of reasoning is discernable. No appealable error is established in respect of these grounds.

Credit finding grounds

Ground 3
The primary judge acted on wrong principle insofar as his Honour uncritically accepted the evidence of the Respondent Mother despite the admission of evidence adverse to her credit.

Counsel’s submissions

It is asserted that the Federal Magistrate did not resolve credit issues at paragraph 33 of his reasons. At paragraph 33, the Federal Magistrate said:
There are a number of factual disputes between the parties. I do not propose to make any general comments about the credibility of either of the parties or their witnesses. Insofar as I need to make findings of fact, I will do so in the course of my discussion about the matters relevant to my considerations.
The father’s counsel submitted that the Federal Magistrate thereafter failed to make appropriate credit findings. In her written submissions, counsel for the mother noted that the Federal Magistrate, in his property reasons, did make credit findings at paragraphs 131, 133 to 140.
It is important that we note at this point in his oral submissions counsel for the father advised us that the property appeal was only being pursued in the event the father succeeded in respect of Order 8 (the order which provides for the child to live with the father for two weekends in every three weekends during school term). It was not clear to us how the setting aside of this order, if appealable error is established, was said to demonstrate the property orders were erroneous as there are no grounds asserting error by the Federal Magistrate in respect of the property order. We see little utility in us discussing credit findings made in relation to property issues as we do not find any direct correlation between those findings and the Federal Magistrate’s parenting reasons and orders.
We observe the wording in paragraph 33 is explicable in light of the later specific credit findings made in respect of the property issues.
In his oral submissions, counsel for the father took us to portions of the cross-examination of the mother, including the submissions made to the Federal Magistrate by the father’s counsel during the course of his cross-examination of the mother. We were directed to the submission made by him on 12 November 2009 (transcript, p 15) as follows:
HIS HONOUR: Well, how can that be relevant?
MR LAWS: It will go to an ultimate submission that this matter is – well, part of the submission will be – has played catch me if you can. She has, no doubt, had her obligations of full and frank disclosure explained to her and that, on more than one important issue, material that should be before the court isn’t there; that earlier depositions are qualified or changed when she is caught out. I will [sic] submitting to your Honour, off the back of that, that those inconsistencies are not mere slips, but they can’t be plausibly explained on any other basis than, we’ll persuade your Honour, that this is a witness whose evidence you should approach with a great degree of caution.
We note that this exchange took place after the mother was cross-examined about the rental property she leased in Brisbane. When the mother was cross-examined about the occupants of a flat she was leasing in D, her evidence was that she had subleased the flat for a two month period from 19 September to November 2009 (transcript, 12 November 2009, p 9).
Counsel for the ICL noted, in paragraph 11 of his submissions, “[i]t is not the case that every one of what may be many issues asserted as relevant by one party or the other is deserving of specific mention and of a finding”.
We do not think that the evidence we were taken to in the appeal book of the mother’s cross-examination was necessarily a matter which required the Federal Magistrate to make a credit finding. It must be remembered each party made numerous allegations about the other. The relevant principle to be applied in this situation is well explained by Kirby J in AMS & AIF (1999) 199 CLR 160 at paragraph 150 as follows:
Ninthly, an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
We are fortified in our conclusion that no appealable error is demonstrated by reference to paragraph 33 in isolation when regard is had to those paragraphs of his Honour’s reasons where the Federal Magistrate did find it appropriate to make credit findings, including his findings at paragraph 139 in respect of the repayment of funds to the wife’s brother. Overall we found the submissions of counsel for the ICL on this ground to be perceptive and consistent with authority, and we accept those submissions.
We detect no appealable error by the Federal Magistrate in failing to make adverse credit findings about the mother in respect of parts of the evidence relevant to parenting issues. We discern no merit in ground 3.

Assertion of acting on wrong principles and error in weight given to s 60CC(3)(d) (e) & (i)

Ground 4
The primary judge acted on wrong principle insofar as his Honour failed to consider the matters set out in s 60CC(3)(d), (g) and (i) according to law.
Ground 5
The primary judge erred in giving improper weight to the matters set out in s 60CC(3)(d), (g) and (i).

It is not in issue that the Federal Magistrate did consider the statutory considerations identified in Grounds 4 and 5. Rather, it is submitted firstly, that the Federal Magistrate gave improper weight to the separation of the child from his half-sibling and the importance of that relationship.

The Federal Magistrate’s reasons (s 60CC(3)(d))

When considering the child’s relationship with each of the parents and with other persons (s 60CC(3)(d)) the Federal Magistrate remarked that the child and his half-brother had not had an opportunity to develop a close sibling relationship. He also recorded the father’s assertions that there would be negative consequences for the child living in the same household as his half-brother.
At paragraph 51 of his reasons, the Federal Magistrate explained that the Family Consultant “appeared to be of the view that the boys do have a relationship and that is a developing relationship”.
At paragraph 64, the Federal Magistrate highlighted the issue about the child’s half-brother and in the following paragraphs (65 to 72) set out the evidence concerning the child’s half-brother’s history, including his difficulties in adjusting to L High School and his further difficulties in his first home-stay placement and High School in Brisbane.
At paragraph 72, the Federal Magistrate concluded:
… There is no indication, at least at this time, that [the half-brother] is a negative influence in the household or that he has a negative influence upon [the child]…
The Federal Magistrate, however, reminded himself of the nature of the relationship between the half-siblings in the following sentence where he said:
I have to acknowledge though that, at this point, the two boys have not lived in the same household for any extended period of time since the separation between the parties.
We consider the Federal Magistrate’s treatment on the issue of the child’s half-brother was insightful and his reasons demonstrated a careful weighing of the positive aspects of the relationship and those matters which could impact negatively on the child. We discern no appealable error in his discussion of, or weight given to, this relevant matter.
The second area of complaint in this ground is the assertion that the Federal Magistrate acted on wrong principle and gave improper weight to the considerations with respect to the child’s and parents’ background. Reference is made in counsel’s submissions to the observations of the Full Court in In the Marriage of Goudge (1984) 9 Fam LR 500.

The Federal Magistrate’s reasons (s 60CC(3)(g) and (i))

At paragraph 77 of his reasons under the headings “Other Considerations” and “Cultural issues”, the Federal Magistrate noted the mother has a Chinese heritage and explained at paragraph 78:
Whilst [the child] has been raised in Australia, it is nevertheless important to him that he have the opportunity and ability to maintain contact with his mother’s cultural heritage. I do not consider that the father is likely to promote that aspect of [the child’s] development.
At paragraph 79 of his reasons, the Federal Magistrate assessed there would be a benefit to the child living with the mother in that he was likely to be bilingual speaking both English and Mandarin as compared to living predominantly with the father who did not speak Mandarin.
At paragraph 80, the Federal Magistrate dealt with the assertions made on behalf of the father that if the child lived with the mother he would become “immersed in the Chinese culture; that he will lose his English skills and that he will ultimately suffer disadvantage if he lives predominantly with his mother”.
Significantly the Federal Magistrate, who had the opportunity to see and assess the mother in the witness box, concluded:
… Whilst I accept that the mother is likely to find work within the Chinese community in Brisbane and she is likely to socialise with other Chinese families, I was not satisfied that she has an intention to immerse [the child] in that culture to the detriment of his Australian culture…
The Federal Magistrate went on to find the mother had good English skills and that he considered she wanted to assimilate herself into Australian society which she saw in broad terms as providing “benefits for her sons in having a strong connection to both communities”. The Federal Magistrate found “[u]ltimately I would see greater benefits for [the child] in the mother’s approach to his cultural identity than the father’s approach”. This finding was replicated by the Federal Magistrate in his conclusions in paragraph 97(f).
In the Marriage of Goudge, Evatt CJ, in dealing with a ground of appeal asserting the trial Judge had failed to give sufficient weight to the mother’s Aboriginal heritage, said at page 509:
The appellant’s submissions on these points raise matters which are both important and difficult to determine. The court is reluctant to make value judgments as to the merits of differing cultural, religious or ethnic heritage: see Sanders and Sanders [1976] FLC 90-078 at 75,374; N and N [1981] FLC 91-111 at 76,828-9. In any event, these children are of mixed race, and in so far as there are significant differences between the cultural heritage and identity of each of their parents, it is not for this court to prefer one over the other on that ground.
Her Honour went on to note:
The submission put by the appellant, however, was not that a preference should be expressed for the culture and background available to these children as part Aboriginals, but that it should be regarded as a positive feature, able to provide something worthwhile to these children. This was coupled with the submission that the father would prefer to shut out this aspect of the children’s lives, that he did not accept the children’s Aboriginality and saw it as damaging…
Her Honour therefore explained matters of differing cultural heritage were “another indication that cultural factors are to be given weight in deciding the welfare of children”. Her Honour said, at pages 510-511, “[m]any cases arising under the Family Law Act involve children who have real connections with two different cultural, racial or religious backgrounds” and later observed “[t]he relevance of such factors must, of course, vary from case to case depending on the individual circumstances”.
We are satisfied in the circumstances of this case the Federal Magistrate did no more than the statute required him to do as part of his overall consideration of the additional consideration and no appealable error is demonstrated.
The final complaint in this ground is that it is asserted under s 60CC(3)(i) the Federal Magistrate acted on wrong principle and gave improper weight to the considerations with respect to the father’s attitude to the responsibilities of parenting (specifically his parenting style). Reference was made to the Federal Magistrate’s findings in paragraph 97(a) to (c). In those sub-paragraphs, the Federal Magistrate found:
I am concerned about the evidence given by the paternal grandmother about the nature of the father’s parenting style. Whilst I accept that she believes that her evidence was taken out of context by the Family Consultant, her evidence was in fact similar to the mother’s descriptions of the father as a parent and husband - ie - that he could be rigid and routine driven and lacked patience. Whilst I can accept that the poor relationship he had with [F] had particular dynamics and I ought not draw too many inferences from that relationship about the father’s parenting I was left in doubt about the father’s overall ability to parent;
I am concerned that there is rigidity in the father’s thinking and his parenting style that may have an impact on the child’s overall development in a number of areas;
I consider that rigidity is likely to impact on the child’s relationship with his mother particularly in circumstances where both parents because of their cultural differences have very different parenting styles;
It is to be remembered that these findings are a summary of the Federal Magistrate’s earlier findings and must be read in the context of his Honour’s acceptance of the Family Consultant’s evidence set out in paragraph 61 of his reasons, and particularly his findings in paragraph 63 where the Federal Magistrate said:
The paternal grandmother however did not seem to resile from her comments about the father’s parenting style. Those comments seemed to be supportive of the mother’s comments about the father’s parenting. That is: he can be impatient; he is someone who likes to maintain rules; and can be somewhat authoritarian in his enforcement of those rules. Whilst I do not consider that that parenting style is likely to have any significant impact on [the child] whilst he is still young, as he gets older and is more challenging, there is, in my consideration, the propensity for [the child] to come into conflict with his father’s parenting style. I do not suggest that it may get to the point of the problems between [F] and the father (because there are obvious difficulties in the nature of that relationship) but I do have to have concerns about that parenting style, particularly as they were expressed by the paternal grandmother.
Although the father’s counsel’s submissions refer to the observations of the Full Court In the Marriage of Hall (1979) 5 Fam LR 609, discussion of the Full Court in that case is not directly relevant to this complaint.
In her affidavit filed after she had the opportunity to read the Family Report, the paternal grandmother, at paragraph 55(n) of her affidavit, deposed:
Regarding paragraph 75, [the Family Consultant] has worded this paragraph to use my words negatively against my son to make him look bad to the court. [The father] is an older father, there is nothing wrong with that. [The father] has not shown less energy and motivation, in fact the opposite. [The father] is fully involved in [the child’s] upbringing. The term ‘just snap’ was used in meaning, as raising his voice and reprimanding [the child]. This does not mean ‘just snap’ and physically harm [the child]. The term ‘losing the plot’ is again referring to raising his voice and reprimanding [the child]. Everyone loses the plot now and then. This does not in any way mean [the father] would ‘lose the plot’ and harm [the child].
We see no error in the findings made by the Federal Magistrate who had the opportunity to see and observe the father in the witness box during his cross-examination. We also accept there was some support for the Federal Magistrate’s conclusions in the Family Consultant’s report which were not entirely inconsistent with the paternal grandmother’s evidence.
We note each of the complaints in this ground are essentially directed towards the weight given to various matters by the Federal Magistrate. It is relevant that we observe that this was a discretionary judgment. The limits on appellate interference with such a judgment are well known. The limitations are cogently explained in Gronow & Gronow (1979) 144 CLR 513; (1979) FLC 90-716 when Stephen J said at 519:
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.
We are satisfied that the weight afforded by the Federal Magistrate to the sibling relationship, the child’s Chinese heritage and the father’s parenting capacity were all matters well open to the Federal Magistrate. No appealable error is established.

Costs

At the conclusion of the hearing we sought submissions from each party and the ICL on costs.
The mother’s counsel sought, in the event the appeal was dismissed, that the father should pay her costs of and incidental to the appeal.

Counsel for the ICL also sought an order that the father pay the ICL’s costs. Subsequent to the hearing of the appeal we were provided with a breakdown of the ICL’s costs which were claimed in the quantum of $3,492.50.
We have considered the financial position of each of the parties following the property proceedings. While the parties’ assets are modest that does not of itself determine the costs issue.
We have regard to the fact that the father was wholly unsuccessful in relation to the appeal. We find in those circumstances that it is appropriate the father pay the mother’s costs of and incidental to the appeal, as well as the ICL’s costs in the sum of $3,492.50.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 24 November 2010

Associate:

Date: 24 November 2010