Yuen & Ainsworth

Case [2021] FamCAFC 86

FAMILY COURT OF AUSTRALIA

Yuen & Ainsworth [2021] FamCAFC 86

Appeal from: Ainsworth & Yuen (No.2) [2020] FCCA 2214

Appeal number(s):

NOA 52 of 2020

File number(s):

BRC 4054 of 2016

Judgment of:

AINSLIE-WALLACE, ALDRIDGE & CAREW JJ

Date of judgment:

7 June 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Appeal against parenting orders providing for equal shared parental responsibility and a gradual increase of unsupervised time with the father – Unacceptable risk of harm – Best interests of the child – Findings open on the evidence – Decision of the primary judge not plainly wrong – Adequate reasons – No error of law – Appeal dismissed – Mother to pay father’s costs in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65D, 69ZN, 69ZQ, 117

Family Law Rules 2004 (Cth) Sch 3, r 22.22

Practice Direction No. 1 of 2017

Cases cited:

Akston & Boyle (2010) FLC 93-436; [2010] FamCAFC 56

Baghti & Baghtiand Ors [2015] FamCAFC 71

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26

Fitzgerald vFish (2005) 33 Fam LR 123; [2005] FamCA 158

Laremore v Speidell (2019) 60 Fam LR 250; [2019] FamCAFC 215

LC v TC (1998) FLC 92-803; [1998] FamCA 47

Logan & Logan (2013) FLC 93-555; [2013] FamCAFC 151

M v M (1988) 166 CLR 69; [1988] HCA 68

Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

Family Court of Australia, Australian Standards of Practice for Family Assessments and Reporting (Report, February 2015)

Heydon, Justice JD ‘Practical Impediments to the Fulfilment of Judicial Duties’ (2004) 6(4) The Judicial Review 429

Division:

Appeal Division

Number of paragraphs:

96

Date of hearing:

10 May 2021

Place:

Heard in Brisbane, delivered in Sydney

Counsel for the Appellant:

Mr Cremin

Counsel for the Respondent:

Mr Baston

Counsel for the Independent Children’s Lawyer:

Mr George

Solicitor for the Independent Children’s Lawyer:

Jenny Boulton Solicitor

ORDERS

NOA 52 of 2020
BRC 4054 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS YEUN

Appellant
AND:

MR AINSWORTH

Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & CAREW JJ

DATE OF ORDER:

7 JUNE 2021

THE COURT ORDERS THAT:

1.The appellant be granted leave to amend the Notice of Appeal by including an additional five grounds of appeal as set out in her Summary of Argument filed 8 January 2021.

2.The appellant be granted leave to rely upon the 19 page Summary of Argument.

3.The Independent Children’s Lawyer be granted leave to rely on written submissions which supplemented their Summary of Argument dated 10 May 2021.

4.The appellant’s Application in an Appeal filed 27 April 2021 be otherwise dismissed.

5.The appeal be dismissed.

6.The appellant pay the respondent’s costs fixed in the…

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AGLC
Yuen & Ainsworth [2021] FamCAFC 86
Case
[2021] FamCAFC 86
Decision Date

CaseChat Overview and Summary

The case involves an appeal by the mother, Ms Yeun, against parenting orders made by the Family Court of Australia. The mother and father, Mr Ainsworth, are parents to a child with moderate to severe hearing loss. The father sought an increase in his unsupervised time with the child, while the mother opposed this, citing concerns about the father's history of excessive alcohol consumption and potential family violence. The mother also sought sole parental responsibility. The appeal was heard by Aislie-Wallace, Aldridge & Carew JJ in the Appeal Division of the Family Court of Australia.

The legal issues before the court included whether the primary judge failed to provide adequate reasons for the orders made, whether the primary judge erred in his understanding of the evidence and in his refusal to make a finding on family violence, and whether the primary judge's decision was plainly unreasonable and unjust. Additionally, the court considered whether the mother was entitled to costs from the father.

The court found that the primary judge provided adequate reasons for the orders, correctly understood the evidence, and appropriately considered the father's history of alcohol abuse and family violence allegations. The court determined that the orders were not plainly unreasonable or unjust, as they included measures to mitigate risks associated with the father's alcohol consumption and family violence. The court also noted that the mother had not succeeded in her appeal and ordered her to pay the father's costs in a fixed sum of $4,000.

In summary, the appeal was dismissed, and the mother was ordered to pay the father's costs within thirty days. The court found no merit in the mother's grounds of appeal, confirming the decisions made by the primary judge.

Orders

Orders of the court

NOA 52 of 2020

BRC 4054 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS YEUN

Appellant

AND:

MR AINSWORTH

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, ALDRIDGE & CAREW JJ

DATE OF ORDER:

7 JUNE 2021

THE COURT ORDERS THAT:

1. The appellant be granted leave to amend the Notice of Appeal by including an additional five grounds of appeal as set out in her Summary of Argument filed 8 January 2021.

2. The appellant be granted leave to rely upon the 19 page Summary of Argument.

3. The Independent Children’s Lawyer be granted leave to rely on written submissions which supplemented their Summary of Argument dated 10 May 2021.

4. The appellant’s Application in an Appeal filed 27 April 2021 be otherwise dismissed.

5. The appeal be dismissed.

6. The appellant pay the respondent’s costs fixed in the sum of $4,000 within thirty (30) days of the date of this order.

.Note: The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

As to (8), the mother was granted leave to amend her grounds of appeal in accordance with the five additional grounds set out in her Summary of Argument.BRIEF BACKGROUND By way of brief background: the mother is a Chinese citizen having been as born in China in October 1982. She lives in Brisbane with the child and is a health care worker. The mother works full time in Brisbane. The mother obtained a permanent residency visa in Australia in January 2017. The father was born in Australia in 1976. He lives in Region G. The father is also a health care worker and works on a casual basis in Region G. The parties met in early 2015 while both studying at university. They had a brief relationship between early 2015 and early 2016. The child was born in late 2015 and experiences moderate to severe hearing loss requiring hearing aids and a “Roger system” device. The father has an admitted history of excessive alcohol consumption and at the time of trial he was spending time with the child each Wednesday from 8.00 am to 5.00 pm supervised by one or other of the paternal grandparents. At trial, the father was seeking to increase his time with the child and to remove the requirement of supervision. The mother was opposed to the increase in the father’s time with the child and sought to continue with supervision pending the father’s compliance with certain conditions directed to addressing the father’s history of excessive alcohol consumption. The mother also sought an order for sole parental responsibility.THE GROUNDS OF APPEAL The mother’s Notice of Appeal, as amended contains 16 separate grounds of appeal. Ultimately, the mother abandoned a ground of appeal alleging that the primary judge “displayed apprehended bias” (additional Ground (1)) and also a ground relating to the failure to admit the mother’s reply affidavit (additional Ground (2)). As already noted, the appeal record indicated that the affidavit was before the primary judge. Turning then to consider the remaining grounds. Without intending any disrespect to the mother or her counsel (who was retained by the mother on a direct brief) both the written Summary of Argument and oral submissions were somewhat tangential and difficult to follow. The written Summary of Argument does not address grounds 2, 3, 4, 5 or 9 nor do they address the further grounds of appeal. The oral submissions touched upon some of these grounds and developed some arguments in relation to the additional grounds. In order to adequately address all grounds relied upon by the mother, they will be considered seriatim.Ground 1: The learned trial judge failed to deliver adequate reasons for each of the orders made by him Despite contending a failure to give adequate reasons for “each” of the orders, submissions addressed only Order 1, which provides for the parties to have equal shared parental responsibility for the care, welfare and development of the child. What will qualify as adequate reasons for a decision will depend upon the circumstances of each particular case, but as the High Court of Australia in DL v The Queen[4] recently held:130.[R]easons must identify the relevant principles of law, refer to relevant evidence, state the judge's findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge.131.Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.(Footnotes omitted)[4] (2018) 266 CLR 1 at [130]–[131].

Evidence

Evidence Before The Court

There is no merit in this ground.Ground 4: The learned trial judge at [37] erred in his understanding of the evidence At [37] of the reasons, the primary judge noted that “[e]ven though there are claims of family violence, that was not the case presented with regard to the need to protect [the] child”. Other than asserting that the videos contained in Exhibit 3 show the father perpetrating violence, counsel for the mother did not expand upon this ground. There is no merit in this ground.Ground 5: At Reasons [85] the learned trial judge erred in refusing to making a finding as to whether there had been family violence, despite Reasons [81], [82], [83], [103], [113] and [176] At [85] the primary judge said:85.The evidence was presented in such a way that all that is before the court are allegations, because I could not possibly make a finding grounded on evidence, which is what the requirement is, based upon the allegations. The content of the remaining paragraphs referred to in his ground are as follows:81.As the matters proceeded through the court other issues arose, especially claims of family violence.82.The mother accused the father of a history of inflicting violence upon her, saying that she was pushed whilst she was pregnant.83.She names a date in… February 2016 when she says the father assaulted her by pushing her – separation occurred not long after that.…103.However, I do not have evidence to confirm any physical violence as claimed by the mother.…113. It seems to me that the allegations of family violence then have been made.…176.Violence was not a particular issue then, as I do not think it is now as long as the parties are kept apart and that violence seems to be within the realm of abuse. No submissions were made in relation to this ground. In any event, the primary judge considered the evidence relating to family violence, such as it was, and put in place various measures to protect the child and parents from the prospect of future exposure to family violence by including provisions in the order for changeovers to occur at school or, where that was not possible, at a public place. There is no merit in this ground.Ground 6: The learned trial judge erred at [171] in making parenting orders when he had admittedly not determined the magnitude of the risk presented by the father’s alcohol abuse, and the occurrence of family violence At [171] of the reasons, the primary judge said:171.Referring to the evidence of the alcohol usage and the evidence of the violence, I cannot determine the magnitude of the risks occurring. It is incorrect to submit, as the mother does in her Summary of Argument at paragraph 38, that the primary judge erred in finding the father posed no risk to the child. It is tolerably clear from the reasons, that the primary judge did assess the father’s history of excessive alcohol consumption as a risk to the child but determined that the risk was not unacceptable (at [339]) and that there would be orders “where supervision can occur if the father does not control his drinking” (at [341]). The risk of a relapse could be ameliorated by including provisions in the order as set out below:(9) That the father is restrained from consuming alcohol during his time with the child and no less than 48 hours prior to the commencement of his time.(10) That the father engage with a psychologist for the next two years to assist him in abstaining from excess alcohol consumption and that he attend at such times as recommended by the psychologist.(11) That the father provide a report to the mother every three months from his psychologist.(12) That the father complete CDT tests once every three weeks during the 12 month period from the date of these orders, and the results of such tests are to be provided to the mother as soon as they become available.(13) That in the event that any of the CDT test results indicate probable excessive alcohol consumption or words to that effect, or the father fails to provide the results within 48 hours of receiving them to the mother, the father shall only spend supervised time with the child on alternate Sundays from 8:00am to 5:00pm until such time as the father has produced CDT results for a period of four months which do not indicate probable excessive alcohol consumption or words to that effect and thereafter all provisions of time as set out in these orders are to take effect.(14) That in the event that the father’s time is to be supervised then it is to be supervised by either:(a) [Mr B]; or(b) [Ms C].

Decision

Reasons for decision

There is no merit in this ground.Additional Ground (5): The learned trial judge’s decision was plainly unreasonable and unjust Counsel for mother complained that the order was plainly unreasonable and unjust for the following reasons:(a)The order did not make specific provision for the mother to be able to have telephone or video communication with the child when she was in the father’s care while such a provision was included for the father’s benefit;(b)The mother was restrained from enrolling the child in any additional extra-curricular activities without the consent in writing of the father (Order 6); and(c)The mother was subjected to a mandatory injunction to provide the child’s hearing aids and Roger system to the father when the child was spending time with him (Order 20). In relation to (a), the mother had every opportunity to include such an order in her proposed orders either before or during the trial or during submissions. In any event, Order 17 requires each parent to “encourage and facilitate reasonable telephone communication between the child and the other parent whilst the child is in their care as requested by the child”. In relation to (b), nothing on the face of the order indicates that it is unreasonable or unjust. At the time of trial the child was participating in a number of extra-curricular activities. There is nothing in the order which would preclude her continuing with those extra-curricular activities but if there are to be additional ones, the mother needs to obtain the father’s written consent. In relation to (c), when it was pointed out to counsel for the mother, that he had in fact conceded the inclusion of such an order,[29] he contended that there was no need for the order to be made given the concession that the aids and device would be provided.[29] Transcript 16 July 2020, p.268 line 35. There is no merit in this ground.COSTS Generally, each party bears their own costs in proceedings under the Act (see s 117 (1)). However, if the circumstances justify a costs order, the Court may make such order as it considers just (see s 117(2)). In considering whether or not to make a costs order, the Court must have regard to the matters contained in s 117(2A), so far as relevant. It is sufficient for one factor in s 117(2A) to be present.[30][30] Fitzgerald vFish (2005) 33 Fam LR 123 at [41]. The mother has been wholly unsuccessful in the appeal (s 117(2A)(e)). The father seeks a costs order for a fixed sum of $4,000. Having regard to Sch 3 (Itemised scale of costs) of the Rules the sum claimed appears to be entirely reasonable. An order will be made to that effect and the appellant will have 30 days to pay. No costs order was sought by the ICL.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.