LUO & LIEW
[2016] FamCAFC 26
•25 February 2016
FAMILY COURT OF AUSTRALIA
| LUO & LIEW | [2016] FamCAFC 26 |
| FAMILY LAW – APPEAL – CHILDREN – Where the mother appeals against final parenting orders – Where the mother lives in Melbourne and the child lives in Sydney – Where the child has been living with the father since 2009 – Whether the trial judge gave insufficient weight to the child’s views and health – Where the child has indicated a desire to live with both parents – Where the mother submits that the child is at risk of psychological harm while living with the father – Where these submissions were not before the trial judge – Where the findings of the trial judge were open to his Honour – Appeal dismissed. |
| Family Law Act 1975 (Cth) s 94AAA(3), s 117 |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
House v The King (1936) 55 CLR 499
| APPELLANT: | Ms Luo |
| RESPONDENT: | Mr Liew |
| FILE NUMBER: | PAC | 743 | of | 2008 |
| APPEAL NUMBER: | EA | 62 | of | 2015 |
| DATE DELIVERED: | 25 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 5 November 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 March 2015 |
| LOWER COURT MNC: | [2015] FCCA 624 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Conte-Mills |
| SOLICITOR FOR THE RESPONDENT: | James Papas Solicitors |
Orders
The Appeal is dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Luo & Liew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2015
File Number: PAC 743 of 2008
| Ms Luo |
Appellant
And
| Mr Liew |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Luo (“the mother”) appeals from orders made by Judge Dunkley on 30 March 2015 in parenting proceedings between her and Mr Liew (“the father”). The proceedings concern their son (“the child”) who was nearly 13 at the time of the orders. Judge Dunkley refused the mother’s application that the child live with her in Melbourne and, instead, continued orders that had been made in 2009 which provided for the child to live with the father in Sydney.
On 9 June 2015 it was directed, pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”) that this appeal be heard by a single judge.
In order to understand the appeal it is useful to set out some history.
The parties married in China in 2000. The child was born in 2002. The parties separated in 2005 and divorced in January 2007. On separation the child lived with the mother. In April 2008 she moved with the child to Melbourne. By that time the father had commenced parenting proceedings (February 2008) and in June 2008 an order was made by the then Federal Magistrates Court that the mother cause the child to live within a 25 kilometre radius from a Post Office in Western Sydney. That order was never complied with and the child continued to live with the mother in Melbourne. The child did, however travel to Sydney on occasions to spend time with the father. On one of those visits in July 2009 the child remained in Sydney with the father. The mother took no steps to have the child returned to her in Melbourne.
The matter came on for a final hearing on 13 October 2009 before Federal Magistrate Dunkley, as his Honour then was. The day before, on 12 October 2009, the mother filed an affidavit which said:
15. I accept that the learned Magistrate will in all probability make orders to dispose of the current proceedings at the hearing. I would seek orders to the following effect:
(i) That [the child] live with the applicant.
(ii)That both the parties retain equal shared parental responsibility for [the child].
(iii)That I have responsibilities for the decisions as to [the child’s] day to day care, welfare and development when he is living with me and the applicant father have that responsibility at all other times.
(iv)That I spend time and communicate with [the child] at time to be agreed between the parties and that the parties share equally the travel costs and expenses.
(v)That each party keep the other informed in relation to [the child’s] medical health, schooling requirements and any other matter that is relevant to his welfare.
On that date orders were made that the parties were to have equal shared parental responsibility for the child who was to live with the father. He was to spend time with the mother as agreed between the parties and, in the absence of agreement, for the first half of each school holiday period. The father was ordered to pay one return airfare for the child between Sydney and Melbourne in each calendar year and the mother to meet all other travel expenses relating to the child spending time with her.
Very generally speaking and with some exceptions, the cause of which was in dispute between the parties, the orders were complied with and the child spent half of each school holiday with the mother in Melbourne.
On 17 July 2013 the mother filed an Amended Initiating Application in which she sought orders that the parties have equal shared parental responsibility for the child, that he live with the mother and that he spend time with the father during the school holidays.
After setting these matters out the trial judge found that since the orders had been made in 2009:
· a further sibling had been born into the father’s household (the father had remarried in 2008 – two children were born of that relationship in 2008 and 2010);
· the father and his family had moved from living with the child’s paternal grandmother into their own home;
· the child had commenced high school and had developed from a child to a teenager.
His Honour found that these factors represented a significant change in circumstances from what had existed in October 2009 and that it was appropriate that there be a reconsideration of the appropriate parenting orders for the child.
The trial judge recorded that the mother was working and studying in Melbourne. She said that she has no desire to return to Sydney and will not do so. The trial judge then found that the child had a close and loving relationship with his mother and his father. Although his relationship with his step mother is ambivalent, he loves his half siblings and his paternal grandmother with whom he spends regular time.
The child’s greatest wish was that he live with both parents on an equal or near equal arrangement, seeing each of them for significant periods.
The trial judge then found if the child was to live in Melbourne it would significantly reduce the time he would spend with his father. It would detract from the relationship they have as well as the relationship between the child and his step siblings and the paternal grandmother. Remaining in Sydney would give him the benefit of continuing to attend the same school and maintaining his peer relationships there.
The trial judge then noted the different parenting styles of each of the parties and the different approach to discipline and diet. His Honour found that they did not seem to point to any particular outcome.
His Honour concluded:
126.On the evidence a move from living with his father to living with his mother would simply be change for change sake. Given the disruptions to [the child’s] life by past changes, future change is to be avoided unless overwhelmingly beneficial for [the child].
127.The change sought by the mother is not overwhelmingly beneficial for [the child] nor is it on balance more beneficial. The change sought would be neutral, neither better nor worse.
128.Living with his father in Sydney will enable the maintenance of [the child’s] relationships with his paternal grandmother, half siblings and school peers. I accept Dr [V’s] view that [the child] is now entering that stage of his life where he will begin an individuation process from his parents, and peers will begin to be more important to him than parents.
129.On balance the evidence for the factors referred to in section 60CC of the Family Law Act 1975 (Cth) is equal as there is no benefit either way. A change will not be ordered.
130.For the above reasons the mother’s Initiating Application will be dismissed thereby leaving in place the parenting orders that have existed since October 2009.
131.Those parenting orders continue for the above reasons to be in [the child’s] best interest and will therefore be maintained.
The Appeal
The mother appeared for herself with the assistance of an interpreter who she used on occasions when necessary. She prepared the appeal herself. The Notice of Appeal does not contain proper grounds of appeal. It is a combination of commentary on the reasons for judgment, submissions and evidence. The central basis for her appeal may be seen in paragraph 17 of the grounds of appeal which states:
I applied to change the order that [the child] lives with me, because I can provide the emotional needs, comfortable and natural attachment, the better cares and one-on-one care to [the child], so that [the child] can recover from his trauma without too much interruption, it is more beneficial for [the child]. These kinds of areas where the judge should look for the judgments.
Nevertheless, as the mother has appeared for herself, I shall deal with her concerns raised in the Notice of Appeal and her submissions.
The mother’s summary of argument refers to what she asserts are a number of errors in dates in the trial judge’s reasons. For example she says the trial judge erred in saying the parties married in 2001 not 2000, that the trial judge mistakenly noted that the mother moved to Melbourne in 2008, not December 2007, that the father’s new wife arrived in December not September 2007, incorrectly noted the date of the apprehended domestic violence hearings and other dates. None of the errors referred to by the mother in her summary of argument was material to any of the findings made by the trial judge or the ultimate decision. They largely refer to matters that occurred before the 2009 hearing, are minor errors and, ultimately, not relevant.
These minor errors do not justify interference with the trial judge’s decision.
The mother submitted that the 2009 orders were made in error. In particular, she asserted that at that time she was unrepresented and did not know that the hearing was listed. When referred to her affidavit referred to earlier in these reasons, the mother said that she did not know that this was in the file, that it was not her affidavit and that her English skills were worse then.
Two things may be said about this. First, the mother did not raise these matters before the trial judge and the point cannot now be taken.
Secondly, the 2009 orders remained in place until the mother sought to challenge them in late 2013. She did not seek to do so earlier. The time that the child had spent living with the father and the consequent development of a number of relationships of value to the child was, as has been seen, a significant factor of the trial judge’s reasoning process. That consideration remains a very important one which would not be diminished even if the 2009 orders were made in error.
The balance of the mother’s grounds and submissions raise four issues which overlap. She asserts that the trial judge failed to make proper findings and give proper weight in relation to the following areas:
·The child’s views;
·The child’s weight and general health;
·The poor housing provided by the father which was leading to a deterioration of the child’s school performance; and
·The father’s neglectful and poor parenting which was leading to physical, emotional and psychological damage.
·The child’s poor relationship with the father’s new wife.
The essence of the mother’s complaint about the trial judge’s findings in relation to the child’s wishes is that she submits that the trial judge did not give sufficient weight to them. The mother’s evidence was that the child has frequently told her that he wants to live with her, that he does not want to return to Sydney and cries at the airport when he has to fly home.
The trial judge had the benefit of a family report. The report writer recorded the child nominating his parents, siblings and friends as the people he loves. He said that his relationships with both of his parents were the most important in his life. The trial judge recorded the following two paragraphs from the report at [85] and [87]:
“[The child] became quite distressed and cried as he spoke about being taken from his mother’s home and placed with his father in 2009. He added that he has now become “used to” living with his father but he still misses his mother. He suggested that he would be much happier if he could spend time with his mother more often. [The child] stated that his mother would like him to live with her. He said that if he lived with his mother he would miss his father, siblings and friends in Sydney. [The child] added that ideally he would like to have both parents live in Sydney and live with each of them for six months of the year. He stated that he has his own phone and telephones his mother when he chooses.”
…
“[The child] presented as a child who wants to be even handed and non partisan. Although he is of an age when his views would be given considerable weight, he did not express a preference for living with one parent or the other. [The child’s] disclosures suggest that he is accepting of his current situation but is lonely for his mother and wishes he could see her more often.”
The trial judge concluded:
105.I am satisfied having regard to Dr [V’s] evidence that [the child] has no greater desire to live with his mother than he does to live with his father. Indeed I am satisfied having regard to Dr [V’s] evidence that [the child’s] greatest desire would be to live in an equal or near equal time arrangement with his parents.
That finding was open to the trial judge on the evidence. That finding does not necessarily conflict with the evidence of the mother that the child tells her he wants to live with her. It may be that the child does tell the mother that, but he has also expressed a wish to live with his father.
There is no basis for saying that the finding was made in error.
The mother’s position before the trial judge was that the child was unhealthily overweight and had a number of health issues which, she said, were largely caused by the child’s poor nutrition. It was her submission that the child lived mainly on junk food and that if he lived with her he would be thinner and healthier.
The trial judge said of these matters:
118.[The child] would probably benefit from more parental direction in his father’s household as to bed time and attendance to his school work and more focus bring [sic] directed to his diet.
119.Without expert evidence it is not possible to conclude how overweight [the child] is. From my observation of the photographs of [the child] and his parents in person at court, it would seem [the child’s] body type is more closely aligned to that of his father than his mother. That is he has a fuller heavy set body type.
120.I am satisfied that the father has sought assistance with respect to [the child’s] weight and is following a plan recommended by the general practitioner.
121.There is no evidence that the father is neglectful of [the child’s] other health issues.
The evidence demonstrated that the father had taken the child to doctors, including a specialist, in relation to some issues that had occurred with the child. One was obviously the child’s weight. Having regard to that evidence, the findings made by the trial judge in relation to the father’s approach to the child’s weight and health properly reflected the evidence. They were findings that could properly be made. The fact that the mother genuinely believes that the father is not caring properly for the child does not establish that to be the case. The obligation was on her to adduce evidence capable of proving it. She did not do so other than by asserting the conclusion and giving evidence as to her beliefs. As the findings of the trial judge were open to him on the evidence, an error in making these findings has not been established.
The trial judge accepted that shortly prior to the hearing the child’s performance at school had deteriorated and that some more parental direction from his father as to bed time and attendance to school work would be of assistance. The trial judge said:
115.His mother seems more focussed on [the child’s] educational outcome and seems better placed to be able to assist him with his education. His father prefers a more “hands off” approach perhaps because he is not as educationally attuned as is the mother but likely because he wishes to instil independence in [the child].
116.[The child] is undoubtedly an intelligent boy. He is struggling in a highly selective high school because he does not apply himself not because he lacks intelligence or receives poor teaching.
117.The mother is more focussed on pushing and nurturing [the child]. The father has more relaxed parenting style preferring to allow [the child] to develop independence.
118.[The child] would probably benefit from more parental direction in his father’s household as to bed time and attendance to his school work and more focus bring directed to his diet.
The mother made the following submissions in the appeal:
·The child was forced to “[live] within uncomfortable, unhealthy living environment”;
·The child was forced to “live with people who he didn’t like too much”;
·The child was subject to “psychological harm under his father’s care”;
·The child was “exposed to a toxic family environment at their early childhood”;
·The child had “chronic psychological pain”;
·That the child disrespects his step-mother; and
·That an “unhealthy family’s [sic] pattern [was] leading to further damage to the child”.
These assertions were not before the trial judge and accordingly his Honour cannot be criticised for not taking them into account. The findings of the trial judge were well open to him.
The mother’s real complaint was that insufficient weight was given to the child’s views and his poor health.
Appellants who seek to challenge a discretionary judgment based upon the weight given by the trial judge to various factors face a difficult task. This is made perfectly clear by the following cases.
In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said, at 504 – 505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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…
In Gronow v Gronow (1979) 144 CLR 513 at 519 Stephen J said:
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…
As I have already observed, his Honour’s original findings were open to him.
There were references in the mother’s submissions to the father exposing the child to family violence. It was not mentioned by the trial judge, which is not surprising. It is now not something that can be taken into account. Such assertions, if made at the trial, may well have been disputed by the father. Both parties are likely to have adduced evidence on the issue which have been evaluated by the trial judge.
I have read all of the evidence that was before the trial judge. I am not satisfied that there was any error in the approach of the trial judge. It follows that the appeal will be dismissed.
Costs
The general position under s 117 of the Act is that parties to proceedings should pay their own costs unless the circumstances justify another order. If the court is considering making another order under s 117 the court must have regard to the considerations raised by s 117(2A).
In the event that the appeal was unsuccessful, the father sought an order for costs. He informed the court that he is legally aided. The mother informed the court that she is working part time in a supermarket. She is presently studying and is in receipt of an Austudy benefit from Centrelink. She earns between $400-$500 per month. She owns her own home valued at $260 000 with a mortgage of $150 000. She pays a mortgage of $800 per month.
Although the mother was wholly unsuccessful on her appeal, taking the financial circumstances of the parties into consideration, the appropriate order is that there be no order as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 25 February 2016.
Associate:
Date: 25 February 2016
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