Ma and Choon

[2007] FamCA 784

FAMILY COURT OF AUSTRALIA

MA & CHOON [2007] FamCA 784

FAMILY LAW - APPEAL – From decision of Family Court judge – Parenting orders – discretionary judgment – whether trial Judge failed to give proper weight to relevant factors – orders made within a proper exercise of discretion – appeal dismissed

Family Law Act 1975 (Cth) s 68F(2)

Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499

APPELLANT: Ms Ma

RESPONDENT: Mr Choon

FILE NUMBER: SYF 4284 of 2002

APPEAL NUMBER: EA 54 of 2006

DATE DELIVERED: 3 August 2007

PLACE DELIVERED: Perth

JUDGMENT OF: Faulks DCJ, Coleman and Thackray JJ

HEARING DATE: 27 June 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 May 2006

LOWER COURT MNC: [2006] FamCA 340

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

SOLICITOR FOR THE APPELLANT: In person

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr Harper

Orders

1. That the appeal be dismissed.

2. That the appellant mother pay the respondent father’s costs of and incidental to the appeal, to be assessed if not agreed. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Ma and Choon

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number:  EA 54 of 2006
File Number: SYF 4284 of 2002

Ms Ma
Appellant

And

Mr Choon
Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by Ms Ma (“the mother”) against parenting orders made by Rose J on 5 May 2006.  Mr Choon (“the father”) and the Independent Children’s Lawyer resist the appeal.

2. The main issue at trial was the amount of contact (as it was then called) that the mother was to have with the parties’ child, [Graham], who was nearly 7 years of age at the time.  A secondary issue was whether the father should be permitted to take [Graham] on a holiday [to another country].

3. The parties agreed that [Graham] should spend each alternate weekend with his mother, from after school on Friday until the commencement of school the following Monday (or Tuesday in the event of a long weekend).  They also agreed that [Graham] should spend half the school holidays with the mother. 

4. Rose J determined that, in addition, [Graham] should have contact with his mother each intervening week from the conclusion of school on Monday until the commencement of school the next day. 

5. The mother is aggrieved because she had asked his Honour to allow her to have a mid-week overnight visit with [Graham] every week.  The mother was also aggrieved that his Honour allowed the father to take [Graham] to [another country].  The planned holiday did not eventuate and at the commencement of the hearing before us the mother abandoned her appeal relating to the overseas trip.

6. We should also record that at the commencement of the hearing, we suggested to the parties that they might seek to resolve two areas of difference that had arisen in relation to the interpretation of the orders.  To their credit, the parties were able to resolve those matters and we made orders in terms of their agreement.  We record our appreciation of the assistance provided by counsel for the Independent Children’s Lawyer in this regard.   

Background facts

1. The factual background as found by Rose J can be summarised briefly as follows:  

2. The mother was a 43-year-old [technician] and the father was a
   42-year-old [professional].  They married in 1996 and separated in January 2002.  There was one child of their marriage, [Graham], born in May 1999.

3. The mother has another son from a previous marriage, [Larry], aged 17 years.  The father has a 3-year-old daughter from his relationship with his current de facto wife.

4. In December 2002, consent orders were made providing for [Graham] to reside with the father and to have contact with the mother each weekend from 10 am Saturday to 6 pm Sunday, as well as two weeks in school holidays.

5. [Graham] has lived with his father ever since.  In 2003 and 2004 the mother spent significant periods living in [another country], during which time she did not see [Graham].  Otherwise, she has had regular contact with him.

Orders sought at trial

1. In August 2004, the mother applied for the December 2002 orders to be “rescinded” and for an order for [Graham] to reside with her.  She also sought an order restraining the removal of [Graham] from Australia, even though such an order had already been made in 2002.

2. By the time various interim orders were made in June 2005, it was noted that the mother was not pursuing her application for residence.  In July 2005, she filed an amended application seeking variation of the December 2002 orders to provide that she have contact with [Graham] each weekend from after his language class on Saturday to the commencement of school on Monday.

3. When the matter came on for trial before Rose J in May 2006, the parties reached further agreement in relation to a variety of matters.  The only issues of substance remaining were the extent of the mother’s contact and the overseas trip.

4. In her oral submissions before us, the mother claimed that at trial she proposed that the December 2002 contact orders should remain in place.  This is not borne out by reference to his Honour’s judgment and the transcript.  The orders sought by the mother were contained in Exhibit 5, paragraph 4 of which indicated that the mother wanted contact with [Graham] “each alternate weekend from the conclusion of school on Friday to commencement of school on Monday” and “each Wednesday from conclusion of school to 7.00 pm Thursday”. 

5. The orders sought by the father were contained in Exhibit 6, which proposed that the mother have contact with [Graham] “each alternate weekend from the conclusion of school on Friday to commencement of school on Monday, or Tuesday if Friday ^(sic) is a public holiday”.

The Ground of Appeal

1. In order to demonstrate the very narrow compass of the appeal, it is convenient to set out here the only remaining Ground of Appeal after the abandonment of the challenge to the order relating to the trip to [another country].  The Ground (which it will be observed contains three different complaints) was in the following terms:

   That His Honour erred in not ordering contact to the mother in accordance with Orders sought at the hearing.  His Honour failed to give proper weight to the nature of the existing relationship between the mother and child.  His Honour failed to give proper weight to the history of regular weekly contact with the mother.

The trial Judge’s reasons

1. Having set out the relevant background and identified the orders sought by the parties, his Honour stated the legal principles he was required to apply. He stressed that in coming to his decision he was required to treat [Graham’s] best interests as the paramount consideration. He then proceeded to discuss some of the factors requiring consideration under the provisions of s 68F(2) of the Family Law Act 1975. His Honour did not consider all of them but, given the relatively narrow parameters of the dispute, there was clearly no need to do so.

2. His Honour recorded that he was not prepared to make a finding in relation to [Graham’s] wishes concerning contact, in light of his age and the absence of satisfactory evidence on the point.  He did find, however, that each parent had a loving relationship with [Graham], although it was clear that his “primary attachment” was with the father.

3. His Honour went on to note that [Graham] had “had a conflicted relationship” with the mother.  His Honour also found that [Graham] had had “difficulties from time to time” with [Larry].  Nevertheless, having had regard to the report of [the psychiatrist] (a psychiatrist who had been appointed to provide a report), as well as the absence of any evidence of continuation of the “historical problems”, his Honour concluded that “whatever problems existed have now been overcome”. 

4. His Honour then spent much of the rest of his judgment dealing with issues arising under the heading “The likely effect of any changes in the living circumstances of the child”.  He noted that the father’s position was that it was important for [Graham] to have “stability and routine which is likely to be disrupted adversely so far as the child is concerned in the event of there being contact in favour of the mother”.  He also noted the father’s concerns about the alleged inability of the mother to provide appropriate assistance with [Graham’s] homework.  Having noted other concerns expressed by the father’s current partner, he recorded that the mother was “anxious to provide consistency in teaching and support of the child which she considers the child does not receive in the father’s home”.

5. Significantly, his Honour then went on to record that [Graham] has “been accustomed for a long time in being with the mother each week”.  He recorded also the opinion expressed by [the psychiatrist] that “it is important for the child to maintain both frequency and regularity of contact with the mother so as to maintain and develop his relationship with her”.  His Honour also found that the evidence did not disclose “any adverse or disruptive conduct by the mother for many months against a background where there had been a history of difficulties in the past including lack of contact by the mother with the child for substantial periods”. 

6. Importantly, his Honour went on to say that whilst accepting the evidence of the father and [the psychiatrist] that routine and stability are important, he “must balance that against the benefits to the child of contact with the mother”.  He accepted the evidence of [the psychiatrist] that [Graham] “did not disclose a warm relationship with [the] mother by contrast to his relationship with the father, nonetheless there were positive signs in terms of their relationship including the relationship with [Larry] that those relationships will continue to improve”.

7. His Honour said that having balanced all of the matters to which he had referred, he concluded that mid-week contact was likely to be of benefit to [Graham] “in terms of developing and maintaining a good relationship with both the mother and [Larry]”.  

8. He then went on to consider the extent and frequency of such contact.  He concluded that a period of only a few hours contact after school provided “only a minimum opportunity for maintaining and developing the relationship between the child, the mother and [Larry]”.  He then set out what he described as the “obvious benefits” to [Graham] in spending overnight periods with his mother and half-brother and concluded that “those intangible features of a parent/child relationship should be a positive one in terms of their current and future relationship”.  He therefore concluded that any mid-week contact should be overnight, and not just a few hours after school.

9. His Honour then considered whether or not mid-week overnight contact should be exercised every week, as the mother was proposing, or only during the week in which [Graham] would not be spending the weekend with his mother.  His Honour said:

   I am not persuaded that it is in the child’s best interests for such frequency of contact to occur.  In that regard, I am prepared to give more weight to the assertions of the father so far as the benefits to the child of having an uninterrupted week.  The father’s views were supported by those of [the psychiatrist], whose evidence I have accepted.

   Accordingly, I find that the child is likely to benefit from mid-week overnight contact with the mother during school term in the week in which weekend contact does not occur.

10. Having then dealt with the issue relating to the trip to [another country], his Honour summarised his conclusions.  In doing so, his Honour said that the orders he proposed to make for mid-week contact each fortnight would “enable the child to positively further and develop his relationship with the mother as well as with his half brother, [Larry]”.  He found that the evidence “suggests that the contact which has occurred every week for several months has been positive so far as the child is concerned”.  He also found that “it is important in [Graham’s] best interests that he maximises the opportunity, within reason, for continuing to develop his relationship with the mother and [Larry]”.

11. His Honour then recorded that counsel agreed that any mid-week contact of the type he proposed to order should take place on Monday nights.  He also recorded his acceptance of [the psychiatrist’s] opinion that

    such an approach was appropriate as it maintains stability for the rest of the week, rather than being broken up between the return of the child after weekend contact and then, for example, two days later the child returning to the mother for further overnight contact.

Appellate principles 

1. This is an appeal from a discretionary judgment.  The principles relating to such appeals are well settled; however, given that the present appeal relates almost entirely to matters of “weight”, it is particularly useful to highlight what was said by Stephen J in Gronow v Gronow (1979) 144 CLR 513 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.

2. It is also instructive to recall what was said in House v The King (1936) 55 CLR 499 by Dixon, Evatt and McTiernan JJ 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 discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Discussion

1. We have already noted that the only ground of appeal ultimately relied upon contains three different challenges to the decision of Rose J.

2. The first was that “His Honour erred in not ordering contact to the mother in accordance with Orders sought at the hearing”.   This can be readily disposed of.  A trial Judge cannot be found to have been in error simply because he made orders other than those sought by one party.  Indeed, it will be remembered that in this case his Honour made orders different to those sought by either party. 

3. The second ground was that his Honour failed to give proper weight to the nature of the existing relationship between [Graham] and his mother.  We find no substance in this complaint.  It will be seen from our summary of the judgment that his Honour considered the relationship between mother and son to be extremely important.  He made repeated references to their relationship and the importance of ensuring that it was developed.  It was this factor that clearly led his Honour to reject the father’s proposition that the mother’s contact with [Graham] should be restricted to alternate weekends. 

4. In making her submissions, the mother seemed to lose sight of the fact that the 2002 orders allowed [Graham] to spend only two nights a fortnight with her during term time.  The orders his Honour made allowed [Graham] to spend four nights a fortnight with her (and sometimes five nights, if the weekend contact visit fell on a long weekend).  In our view, this significant increase in the amount of contact was ample recognition of the importance of [Graham’s] relationship with his mother. 

5. The third ground relied upon was that his Honour “failed to give proper weight to the history of regular weekly contact with the mother”.  Again, we find no substance in this complaint.  His Honour recorded that the December 2002 orders had provided for contact every weekend (albeit this had not occurred during the extensive periods in which the mother had been away in [another country]).  He found that [Graham] had “been accustomed for a long time in being with the mother each week” and further found that the evidence suggested that “the contact which has occurred every week for several months has been positive as far as the child is concerned”.

6. These findings were not, of course, the only matters his Honour had to take into account.  A very important factor in his Honour’s clear process of reasoning was that the mother’s proposal for mid-week contact every week would be unduly disruptive.  Had the mother succeeded in her application, [Graham] would have been denied what his Honour found were the benefits of an “uninterrupted week”.  His Honour was, in particular, anxious to maintain what he saw as the “stability” of a contact regime that did not involve [Graham] moving too often between the homes of his parents. 

7. In coming to that conclusion, his Honour had regard not only to the opinions expressed by the father, but also the views of [the psychiatrist], who was well qualified to comment on the likely effect on [Graham] of the various proposals being considered.  Although not mentioned in his Honour’s judgment, we record that in giving his oral evidence-in-chief, [the psychiatrist] had, in fact, expressed concerns about any mid-week contact being exercised on an overnight basis.  He said (at Appeal Book 1, pp 90-1) that such contact:

   would raise the possibility of there being additional disorganisation with regard to [Graham’s] day to day routine attending school and so on.  In my view it is essential that if there is mid-week contact that it fit into [Graham’s] day to day routine…  

8. [The psychiatrist] did, however, acknowledge (at Appeal Book 1, p 93) that the decision his Honour had to make on this point involved

   a balancing act between … two important dynamics.  On the one hand it would be advantageous for the mother and for [Graham] to have mid-week contact, provided that that is not too disorganising to the routine.

9. [The psychiatrist] was initially of the view that the best outcome for [Graham] would be for him to see his mother after school on one occasion every week, but for there to be no overnight contact other than on weekends.  However, towards the end of his evidence (Appeal Book 1, p 103), [the psychiatrist] very properly acknowledged that he had neglected to consider fully the ramifications of his initial recommendation.  Under cross-examination by counsel for the father, [the psychiatrist] said this:

   I do respect the issues that you are raising and certainly if [Graham] is spending Friday night, Saturday night, Sunday night with the mother then two nights later, having spent two nights with the father and then going to stay with the mother again, that would indeed be disruptive.  Your Honour, I would like to re the previous statement that I made with regard to weekly or fortnightly contact … it is important to set up stable arrangements with regard to [Graham’s] welfare and residence and contact arrangements.  My previous statement that such contact would happen weekly neglected to consider that, as has been raised, that it would have several nights, so Friday, Saturday and Sunday night with his mother then only just starting to be settled into the father’s care would go and stay another night with his mother, that would not be appropriate and under those circumstances it may be more appropriate for it to be a night during the off week, so to speak.  Because I think that it will be important for [Graham] to establish a regular routine at his father’s home once he is returning from weekend contact with his mother.

1. His Honour clearly accepted the merit of what [the psychiatrist] had to say in relation to the disruption that would be inherent in the proposition the mother was advancing.  He accepted [the psychiatrist’s] advice and made orders which restricted mid-week overnight contact to one occasion each fortnight.  Those orders were well within the proper exercise of his discretion and we see no possible basis on which we should interfere with them. 

2. There being no substance in any of the grounds raised, the appeal will be dismissed.

Costs

1. Counsel for the Independent Children's Lawyer advised that he was not instructed to seek an order for costs in the event the appeal was dismissed.  The father, however, did seek an order for costs, claiming that he had incurred expenses in the region of $1,500 in obtaining advice and assistance with the drafting of his Summary of Argument.

2. We have little information concerning the financial circumstances of either party.  Given the nature of their respective occupations, it would be reasonable to assume that the father is likely to have a greater income than the mother.  Nevertheless, the matter of most significance in exercising our discretion in relation to costs is that the mother was wholly unsuccessful in prosecuting an appeal which she would not have pursued had she been properly advised.  In coming to our decision we have not overlooked the fact that the mother was self-represented on the hearing of the appeal and does not have a good command of English.  Nevertheless, she was represented at the time she filed her appeal and should have been advised that the prospects of success were negligible. 

3. We have no evidence to establish the extent of the father’s legal costs and we therefore propose that his costs be assessed pursuant to the Family Law Rules 2004, if not agreed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  3 August 2007