YAU & LAC
[2020] FamCAFC 138
•5 June 2020
FAMILY COURT OF AUSTRALIA
| YAU & LAC | [2020] FamCAFC 138 |
| FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders which provided for the father to have sole parental responsibility of the child and for the mother to spend limited supervised time with the child – Weight challenges – Allegation of bias – No error of fact or law by the primary judge – Where the primary judge’s findings were open on the evidence – Where the primary judge did not consider irrelevant matters – Appeal dismissed – No order as to costs. |
| Federal Circuit Court Act 1999 (Cth) s 88Q(2)(b) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 |
| APPELLANT: | Ms Yau |
| RESPONDENT: | Mr Lac |
| INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb Lawyer |
| FILE NUMBER: | MLC | 6445 | of | 2016 |
| APPEAL NUMBER: | SOA | 101 | of | 2018 |
| DATE DELIVERED: | 5 June 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Watts JJ |
| HEARING DATE: | 28 November 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 December 2018 |
| LOWER COURT MNC: | [2018] FCCA 3851 |
REPRESENTATION
| APPELLANT: | Litigant in person with the assistance of an interpreter |
| RESPONDENT: | Litigant in person |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Danielle Webb Lawyer (Excused from participating) |
Orders
The appellant mother’s oral application to adduce further evidence made on 28 November 2019 is dismissed.
The appeal against the orders of a judge of the Federal Circuit Court of Australia made on 21 December 2018 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yau & Lac has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 101 of 2018
File Number: MLC 6445 of 2016
| Ms Yau |
Appellant
And
| Mr Lac |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
On 21 December 2018 a judge of the Federal Circuit Court of Australia made final parenting orders between Ms Yau (“the mother”) and Mr Lac (“the father”) in relation to their child, X, who was born on … 2006 (“the child”).
The primary judge’s orders provided that the child live with the father and spend two hours of supervised time with the mother and the frequency of that time, whether twice weekly, weekly or fortnightly, be dependent on the availability of the nominated professional supervisor. Six months after the commencement of the supervised time, the orders gave the mother the liberty to apply for orders for unsupervised time.
The orders effected a significant change in the child’s life who had, up until then, been ostensibly, if not actually, in the care of the mother.
The background to the making of the orders is useful for the development of the issues argued on the appeal.
Background
The mother and the father met in 2002 and began living together in December 2003. Although the relationship was not necessarily harmonious, they lived together until May 2012. Thereafter the primary judge found that the child spent roughly equal time with each of her parents. In July 2014, the child spent a little over three months with the father while the mother was in China and, on the mother’s return, the equal time arrangement continued.
All that came to an end in July 2016 when the mother refused to allow the child to spend time with the father, changed the child’s school without informing the father and enlisted the mother’s adult daughter from a previous relationship, Ms G, in concealing the child’s whereabouts from the father. It is clear from her Honour’s reasons for judgment that the child lived with Ms G for significant periods of time (at [21] and [28]).
What then followed was ongoing litigation by the father in pursuit of him spending time with the child. The primary judge’s reasons for judgment set out a sorry history of orders being made, followed by non-compliance by the mother. As a result, by the time that the final hearing had finally commenced in February 2018, the child had not spent time with the father for 18 months.
It is unnecessary for these purposes to repeat the history of these proceedings but to note that the mother, supported by Ms G, was implacably opposed to the child seeing the father, and as the primary judge noted, on 20 February 2017 when orders were made for the child to spend time with the father and for the handover of the child to take place in the presence of a Family Consultant at the Court’s child minding facility, the child refused, was upset and fearful of the father and referred to him in trenchantly critical terms. Ms G, who was also present, called the police. The child left the facility with the father. Within hours of her being at her father’s house, the mother called and texted the child on a number of occasions and came to the house three times. Police too arrived having been asked by Ms G to conduct a “welfare check” on the child (at [49]). When the police spoke to the child she said that the father had sexually abused her at an earlier time.
The police investigated and the child was interviewed and attended sexual assault counselling. In May 2017, the police investigation was dropped, the police finding the complaints to be unsubstantiated.
The primary judge said of the child’s fierce opposition to seeing the father in February 2017:
49.Clearly the scene that transpired on 24 February 2017 was very difficult and disturbing for all. [The child] was at the time aged 10 years. She had, only two months earlier, expressed no fear of her father; had happy memories of times spent with him; and had consistently, prior to July 2016, spent significant periods of time with him, and, since August 2014, with he and his wife. She presented however in February 2017 as a child determined to get her way; aligned with [Ms G] who exacerbated matters by calling the police and sending again a message to the child that she was unsafe in her father’s care, and that she could perhaps obtain the outcome she insisted upon; and intent on rejecting her father…
The litigation continued, the father seeking orders that he spend time with the child and the mother opposing those orders. On 21 August 2017, the Court ordered that the father and the child recommence spending time together in accordance with orders made in December 2016. The orders of December 2016 required the handover of the child as between the mother and the father to take place at a specified contact centre, and if that contact centre was not available, a police station. However on 14 November 2017, while the child was taken to a police station for changeover, she refused to go with the father.
In December 2017, the father sought orders that the child live with him, that he have sole parental responsibility for her and that the mother have limited supervised time with the child. The mother opposed those orders, seeking instead that the child be permitted to choose with whom she lived.
That application was listed for hearing which commenced on 1 February 2018. After hearing the evidence of the Family Consultant, the mother and the father agreed to attend therapeutic counselling with a view to repairing their relationship so that the child could spend regular time with the father. The therapeutic counselling was unsuccessful. The matter was listed for further hearing in September 2018. Before that time, the mother sought orders permitting her to take the child to China to attend a youth summer camp. That and other applications filed by the mother were dismissed.
The mother had maintained that the father was not the biological father of the child but had nonetheless opposed paternity testing, saying that the child had no interest in discovering who her father was. When the hearing resumed and at the conclusion of the evidence on 11 September 2018, parentage testing was ordered. Further, interim orders were made by consent that the child spend one and a half hours with the father on two Sundays at a nominated restaurant, in the presence of the mother. The mother breached the orders by not making the child available on both occasions.
Parentage testing eventually took place revealing that the father was indeed the biological father of the child.
There was a further continuation of the hearing and on 9 November 2018, orders were made that the child spend continuous unsupervised time with the father commencing that day. Her Honour observed that this would be the first time that the child had spent meaningful time with the father since July 2016 (at [88]).
At [104], the primary judge set out the opinion of the Family Consultant who said of the mother:
… [The mother] has a pattern of being an absentee parent and displays strategic behaviours that have effectively restricted to the most superficial all her children’s relationships with their respective fathers. [The mother] left her older children in the care of others, and in Sydney and they now have a marginal relationship with their father and this behaviour has been replicated with [the child] who for extended periods has been placed in the care of [Ms G] and withheld from spending time with her father. Currently, from [the child’s] perspective, [the mother] does not reside with her children full time and [the child] continues to be largely cared for by others.
…
There is no indication that [the mother] has any capacity to support [the child] having a relationship with either her father or any other person of whom she disapproves as [the mother] was both contemptuous of [the father] and disrespectful of the Court process …
In relation to the father and the child’s position as between her parents, her Honour quoted the Family Consultant’s opinion:
… [The father] displays a strong, affectionate relationship with his daughter and despite recent events this relationship continues currently, attesting to the time and care that [the father] has put into this relationship. [The child] herself expressed apprehension both about whether her father will see her [Visual and Audio Recording of Evidence by Victoria Police] and about meeting him again, not because he will be angry, as is the claim, but because [the child] is distressed she has “...betrayed” him. [The child] is caught in the middle between her parents, her mother seeking retribution from [the father] for his perceived failings as a partner and [the father], stricter than [the child] would like, more critical than she can accept and somewhat old fashioned. [The child] finds her position confronting and anxiety evoking, and when she returns to her mother she has learnt she is unable to report positive experiences about her time with her father. She is also engaged in conversations with [the mother] about adult issues that are largely focused on [the father’s] limitations and as a child already anxious about “…whether mum loves me” she is receptive to a pseudo connection, in which mother and child bond over a cultivated distrust and dislike of [the father] and [the child’s] entitlement to make her own choices…
Her Honour relied on the opinion of a further expert, Ms B, whom she quoted at [111] as saying:
… [The child’s] current beliefs about her father are irrational and derive from the mother’s beliefs with a very strong need to please and appease her own mother. There is a degree of fear that she has and she must demonstrate loyalty to her mother. That, too, is notionally unhealthy.
The primary judge concluded that the child had not been subjected to sexual abuse by the father and said, after noting inconsistencies in the evidence of the mother and Ms G in this regard:
145.… The mother will say and do anything to achieve her object. In this case it is the total destruction of the child’s relationship with her father. [The child] has been totally enmeshed in an alienation process instituted by her mother and encouraged by [Ms G] …
Her Honour concluded that the child had been subjected to emotional abuse by the mother which represents an unacceptable risk to the child and there is no likelihood of that abating (at [149]).
She concluded:
153.The Court has had to grapple with on the one hand, the child’s need to continue to reside, in a general sense, with her mother and thereby have ready access to, indeed live with her adult sister and brother. The child has historically been allowed to make her own decisions, and expects that her demands will always be met. This is detrimental to her long term emotional development. On the other hand, the child has a need, a very important one, to be allowed to have a nurturing and loving relationship with her father. This has been completely denied to her. More than that, he has been drawn as a monster, capable of gross betrayals of his daughter. That picture is continuing to be painted and, if possible, exaggerated further. It is in the child’s best interests to attempt to reverse this process.
154. The mother has no ability to behave in any reasonable way which might promote the child’s best interests. It is not possible for the child to live with her mother or spend unsupervised time with her presently. The child has a loving, consistent, ever present father that she cannot see or communicate with when in her mother’s care. In her father’s care, she is encouraged to have a relationship with her mother. Her siblings shall be able to arrange to see the child as agreed with her father. This may well be initially in his presence but he understands her need, emotionally, to continue this sibling connection but in a way that promotes the child’s best interests. That must include an acceptance, and support of, her living environment with her father and his wife.
As part of her Honour’s orders, she made an order pursuant to s 88Q(2)(b) of the Federal Circuit Court Act 1999 (Cth) that for a period of six months the mother is prevented from filing any further applications without leave of the Federal Circuit Court.
The appeal
The mother appeared for herself on the appeal and drafted the Notice of Appeal filed on 27 December 2018 and the supporting documents, which are not entirely easy to understand, nevertheless, it seems that she contends that the primary judge erred in that her Honour:
·made errors of fact;
·did not include all of the important facts of the case;
·relied on unreliable evidence;
·made errors of law that include errors in the trial process; and
·as well as the Independent Children's Lawyer and the Family Consultant, demonstrated bias.
Neither the mother’s Summary of Argument filed on 14 June 2019 nor her oral submissions at the appeal hearing illuminated the asserted grounds of appeal.
In her Summary of Argument, the mother argued at [1]:
… The judge inappropriately applied family law Sect 60CC, 60CG, and 4AB, assigned parental custody to the abuser, was unable to identify the better parent, deliberately misinterpreted the mother's intention, deliberately downplayed the seriousness of defamation, deliberately misconstrued [the father’s] negative words and actions, deliberately denied the authenticity and irrefutability of the child's testimony, deliberately ignored the weight of the child's testimony, and could not judge the best interests of [the child].
(As per the original)
This and other challenges to the primary judge’s findings amount to a contention that the primary judge ought to have preferred and accepted the mother’s evidence. What facts are found and what weight is apportioned to those found facts are matters quintessentially for a primary judge. Appellate intervention will not occur merely because other judges may have come to a different view. The mother must demonstrate that her Honour’s findings of fact were not open to her on the evidence and must, where discretionary findings are made, demonstrate that those findings and conclusions were “plainly wrong” (see Edwards v Noble (1971) 125 CLR 296 at 304 and Gronow v Gronow (1979) 144 CLR 513 at 519–520). Here, her Honour’s findings of fact were well open on the evidence and in our view the facts drove her conclusions.
During the appeal hearing, the mother made an oral application to adduce further evidence and tendered a one page document from the file of the relevant child protection authorities which she said demonstrated that there had been previous reports to that authority of concerns for the child. That single page, while indeed noting a number of previous reports in relation to the child’s welfare, must be seen in the context of the primary judge’s careful and painstaking analysis of the facts before her, including the mother’s numerous applications for interim intervention orders against the father, about which her Honour said: “[w]hilst the mother was successful in obtaining interim, commonly ex parte orders, all intervention order proceedings have eventually been withdrawn, struck out or refused” (at [24]). Noting that the capacity of the Full Court to accept further evidence on appeal is constrained (see CDJ v VAJ (1998) 197 CLR 172 at 201), it is not clear to us what the relevance of the one page document that the mother wished to adduce on appeal was, and thus the application will be dismissed.
In short, the primary judge found the mother to be an unreliable witness on whose evidence her Honour could not rely upon, nor could she rely upon the evidence of Ms G. That conclusion, amply supported by her Honour’s reasons for judgment, is in our opinion unassailable and we find no support in the grounds that challenge her Honour’s fact findings and conclusions.
Nor do we accept the challenge to her Honour’s application of the law. The mother’s complaints are in effect a challenge not to the primary judge’s understanding of the law but to her application of it against the submissions of the mother. No error has been demonstrated.
That the orders made and the underlying facts found by the primary judge do not accept the mother’s contentions, does not establish bias against the mother. By way of example at paragraph 55 of the mother’s Summary of Argument, she claimed that the primary judge was biased because she did not “reasonably consider” any of the orders sought by the mother. The mother too claimed that the Independent Children's Lawyer and the Family Consultant were biased against her, a claim which devolved into them not accepting and supporting the orders for which she contended.
Thus, the mother has not established error in her Honour’s orders and the appeal will be dismissed.
Both the mother and the father represented themselves. The father did not file a Summary of Argument and there was no application for costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Watts JJ) delivered on 5 June 2020.
Associate:
Date: 5 June 2020
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