Zau and Uong (No 2)
[2015] FamCAFC 150
•23 July 2015
FAMILY COURT OF AUSTRALIA
| ZAU & UONG (NO. 2) | [2015] FamCAFC 150 |
| FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – where the applicant seeks to review the exercise of power by the Appeal Registrar in refusing to order that the court and/or the respondent obtain the transcripts of the hearings before the trial judge and prepare the appeal books – Where the applicant is able to prepare extensive and detailed documents – Where there is no reason proffered by the applicant which would support an order being made requiring the respondent or the Appeal Registrar to prepare appeal books or meet the cost of obtaining transcripts of the hearings – Applications dismissed. FAMILY LAW – APPEAL – NOTICES OF APPEAL – Where neither of the Notices of Appeal filed contain proper grounds of appeal – Where the child the subject of the proceedings will turn 18 years of age in six months – Where it is doubtful that the appeals will be able to be heard and determined prior to the child turning 18 years of age – Where once the child turns 18 years of age the Family Court of Australia no longer has jurisdiction in relation to him – Where the appellant does not understand the appeal process – Where there is no utility in either of the two appeals – Where there is no reasonable prospect of success in either appeal – Appeals dismissed. |
| Family Law Act 1975 (Cth) |
| Zau & Uong [2014] FamCAFC 36 |
| APPLICANT: | Ms Zau |
| RESPONDENT: | Mr Uong |
| FILE NUMBER: | MLC | 3931 | of | 2012 |
| APPEAL NUMBERS: | SOA | 14 | of | 2015 |
| SOA | 18 | of | 2015 |
| DATE DELIVERED: | 23 July 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| EX TEMPORE JUDGMENT OF: | Strickland J |
| HEARING DATE: | 23 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATES: | 7 May 2015 - Orders of Southern Appeal Registrar 4 February 2015 |
| LOWER COURT MNC: | NA [2015] FamCA 47 [2015] FamCA 56 |
REPRESENTATION
| THE APPLICANT: | In person with interpreter |
| THE RESPONDENT: | In person – no appearance |
Orders
In appeal no. SOA 14 of 2015
The application in an appeal filed on 13 May 2015 be dismissed.
The Notice of Appeal filed on 2 March 2015 be dismissed.
Paragraph 2 of the application in an appeal filed on 20 April 2015 be dismissed.
In appeal no SOA 18 of 2015
The application in an appeal filed on 13 May 2015 be dismissed.
The Notice of Appeal filed on 27 February 2015 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zau & Uong has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Numbers: SOA 14 & 18 of 2015
File Number: MLC 3931 of 2012
| Ms Zau |
Applicant
And
| Mr Uong |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a sad case in many respects. The proceedings between the parties have been in the courts since, as I understand it, 2003, and there have now been two substantive judgments delivered by trial judges since 2013. The first was a judgment delivered by Cronin J in relation primarily to the issue of whether the parties had been in a de facto relationship such that there could then be orders made for property settlement. In that regard his Honour found that there had not been a de facto relationship. That judgment was delivered on 23 April 2013 and it has been the subject of a Notice of Appeal filed by Ms Zau (“the applicant”). That appeal was heard only last week by the Full Court sitting in the Melbourne Registry, and judgment has been reserved.
The second substantive judgment that has been delivered in this case relates to the child of the parties, who was born in 1998. Final parenting orders in relation to the child were made by Macmillan J on 4 February 2015. The applicant has also filed a Notice of Appeal against those orders. Separate to that, and I mention this for completeness, prior to Macmillan J making orders and delivering her reasons for judgment in that matter, her Honour had to deal with an application by the applicant to reopen the case and, in effect, present further evidence. Macmillan J dismissed that application, also on 4 February 2015, and the applicant then subsequently filed a Notice of Appeal against that order. Clearly that issue is part and parcel of the substantive issue relating to the child of the parties.
Today before the court are two applications in an appeal filed by the applicant, one in each of the latter two appeals to which I have just referred. In both of those applications the applicant seeks a review of the exercise of power of the Appeal Registrar on 7 May 2015, when the Appeal Registrar made orders to prepare those appeals for hearing. Specifically what the applicant complains about, and the orders that she seeks on review, is that in both instances either Mr Uong (“the respondent”), or the Appeal Registrar obtain the transcript of the hearings and prepare the appeal books for those hearings. In that regard the Appeal Registrar effectively ordered on 7 May 2015 that the applicant do that.
Nothing further has happened in relation to those two appeals, and that is significant in relation to when they may be heard, and I will come to that in a moment.
In the context of the appeal against the orders made by Cronin J, to which I have earlier referred, there were a number of applications in an appeal filed by the applicant, including an application to review the exercise of power by the Appeal Registrar, and specifically in relation to the issue of who was to obtain the transcript, and who was to prepare the appeal books. In other words, that self-same issue was raised in that appeal by the applicant. In relation to that matter I refer to the orders I made in that appeal, and my reasons for judgment delivered on 28 February 2014 (see Zau & Uong [2014] FamCAFC 36), when I dismissed the applicant’s application for the respondent or the Appeal Registrar to obtain the transcript. In relation to the preparation of an appeal book, in the interests of allowing the matter to proceed, the Appeal Registrar had obligingly agreed with the applicant to prepare the appeal book, and the Appeal Registrar attended to that, obviously resolving that issue. I hasten to add though, that in relation to the two appeals against the orders made by Macmillan J on 4 February 2015, the Appeal Registrar has not been prepared to prepare the appeal books, and in my view, understandably so, given the history of this matter and the issues raised in those appeals.
In support of the applications that are before the court today the applicant has filed affidavit material, which I have read. Frankly, it is little different from the affidavit material that she filed in relation to the earlier appeal against orders made by Cronin J.
In the time that I have been hearing these matters, I have become well aware of the applicant’s position in relation to her financial and physical capacity to prepare documents, as well as her mental health difficulties. In that regard, as I have recorded in previous judgments, the applicant has been diagnosed as bi-polar and she has had periods of hospitalisation, certainly in late 2013, in 2014, and as I understand it, earlier this year. I am satisfied though that the applicant has been able to conduct these proceedings today, and I am comforted in that assessment by the fact that at the commencement of the hearing today the duty solicitor at this Registry appeared for the applicant in an attempt to assist her in this matter, and in the course of discussion between bar and bench, the duty solicitor indicated that the applicant had been able to provide her with instructions, and she considered that the applicant was capable of appearing today and presenting her case.
In terms of the applicant’s physical capacity to prepare documents, frankly, the thickness of the files in the appeal proceedings I have mentioned attest to the ability of the applicant to prepare extensive and detailed documents, and I was not persuaded previously, and I am not persuaded now, that the applicant is physically unable to prepare appeal books. There may be a difficulty in terms of her financial circumstances, but I do not need to dwell on that, because what has become readily apparent to me in reading the material, and I note that the lead-up to today has been the first opportunity I have had to read the reasons for judgment delivered by Macmillan J on 4 February 2105, both in relation to the substantive matter of the parenting issues and the matter relating to the application to reopen the case, and in that context also having the opportunity to read the Notices of Appeal filed by the applicant against those orders of 4 February 2015, is that, as was the case in relation to the appeal against the orders made by Cronin J, neither of the two appeals now filed contain proper grounds of appeal. They are narratives, they are bare assertions, but they do not, as they must, allege appealable error by the trial judge.
That is important, because the scenario that now confronts this court, is that the two appeals filed against the orders made by Macmillan J on 4 February 2015 relate to the child of the parties. However, that child is currently 17 years of age and was 17 years of age at the time her Honour made her orders. He will turn 18 years of age in early 2016, namely six months hence. In a practical sense it is doubtful whether either of the two appeals will be able to be heard and determined prior to the child turning 18 years of age, but even if that was possible, it is still the case that we are talking about a child who is almost 18 years of age, and a child, who it seems from her Honour’s reasons for judgment, is able to speak his mind and present his wishes to the court, as happened in relation to the trial before Macmillan J.
What Macmillan J said in her reasons for judgment for example about that was this:
49.I am satisfied that [the child] is a mature and intelligent young man who has formed his own independent views and that his views, which are critical to the decision the Court must make in this case, should be respected. [The child] told Ms [K], and I accept, that he receives support from teachers and a school psychologist when he requires assistance with respect to his relationship with his mother.
50.Ms[K’s] description of [the child] as a mature and intelligent young man is consistent with his housemaster’s description in his email to the father, to which I have already referred in paragraph 8 of these reasons. As I have already found, there is no evidence to support the mother’s assertion that the father has put pressure on [the child] not to maintain his relationship with her and it is clear from Ms [K’s] evidence that [the child] has maintained contact with his mother independently of his father. Whilst the father was not aware that [the child] had done so, it was his case that [the child] should be left to make his own decisions about contacting the mother, his primary concern being that [the child] not be exposed to the conflict between himself and the mother and that [the child] be able to focus on his studies.
Significantly at [53] her Honour also said this:
I have no doubt that the mother equally loves [the child] however it is clear from her evidence and the evidence of Ms [K], which I accept, that the mother cannot separate her needs, and in particular what she perceives to be the financial injustices she has suffered at the hands of the father, from [the child’s] needs.
In making submissions the applicant has put to me what she would see as her reasons for the two appeals not being concluded today. She says she needs to protect her son, she repeats allegations of family violence, she puts concerns that she has about the child’s welfare; but all of those matters were put to the trial judge. There is nothing new, and the trial judge clearly took those matters into account.
The applicant complains that she has not been able to see the child for the last two years. However, what her Honour ordered about that was as follows:
(4)[The child] spend time with and communicate with the mother in accordance with his wishes.
Sensibly, in my view, the trial judge left it to the child, who is almost 18 years of age, to determine when he will spend time with and communicate with his mother. That appears to me to be a very important recognition of the child’s independence and how he has had to live with the dispute between his parents over many years.
In my view what is clear here is first, there is no utility in either of the two appeals that are currently before the court. Secondly, there is no proper ground of appeal raised by the applicant in either of the Notices of Appeal. Thirdly, in trying to make some sense of the complaints that the applicant is raising, but bearing in mind that always has to be seen through the prism of the appeals that she has lodged, I am confident in saying that there is no reasonable prospect of success in either appeal.
That clearly must impact upon the review applications which are before the court today. If there is no reasonable prospect of success in relation to the appeals, and the appeals lack utility in any event, it would be onerous in the extreme to require anybody, whether it is the applicant or the respondent, or indeed the Appeal Registrar, to obtain the transcript of the hearings before Macmillan J and prepare appeal books.
It is of concern to me that the appeals have reached this point. In my view the Notices of Appeal should not have been accepted by the Registry and that might have brought this matter to an earlier conclusion, and saved some heartache and concern as the matter has progressed. Be that as it may, I have to deal with the position as it is presented today.
To repeat something that Macmillan J said in her reasons at [53] and to which I have earlier referred. I also have no doubt that the applicant deeply loves the child, and I accept that for her own reasons she is concerned about the child’s welfare, but that is not what an appeal would be about. I have been concerned for some time that the applicant misunderstands the nature of an appeal. In simple terms an appeal is there to correct appealable errors by the trial judge, not to rehear the matter, not to look again at the evidence that was before the trial judge, but to determine whether the trial judge has made an error of law or fact such that appellate interference is required. That simply is not the case here.
Hopefully in the future, and particularly when the child turns 18 years of age, at which time he will be able to make his own decisions about his parents, the time that he might spend with them and the communication that he might have with them, then sorry history of this matter can be put behind everyone.
That highlights the point again that once the child turns 18 years of age the Family Court of Australia will no longer have any jurisdiction in relation to him. He will be an adult and able to determine his own future. I keep coming back to that point, but that is the most important and relevant point in this entire saga.
Thus, although of course the issue of whether the appeals should proceed or not is not formally before me today, in my view enough is enough, and it is within my power to deal with the appeals beyond the applications that are before me today.
As a formality though I propose to deal with them step by step. First, in relation to the applications in an appeal filed in each of the appeals I propose to dismiss them for the reasons that I have already outlined. Then, also for the reasons that I have outlined above, I propose to dismiss each of the appeals and bring these matters to a conclusion.
For completeness I note the respondent has not appeared today, but there was an email received by the court from him dated 21 July 2015. That email reads as follows:
These are appeal matters for hearing on this Thursday 23rd July 2015.
I am the respondent.
I do not propose to appear or to be represented on Thursday.
I am satisfied that the orders already made in these matters are just and appropriate and believe that the appeals should be dismissed.
I am happy to abide by any orders the Court sees fit to make.
Would you please draw the attention of the presiding Judge to the contents of this email.
That clearly explains the respondent’s non-appearance but frankly his attendance was unnecessary, given that it is the applicant’s applications which are before the court, and the onus is on her to pursue those applications and present her case in relation to them. I note though that the respondent’s ultimate position was that the appeals should be dismissed, and that is in fact what I intend to do.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 23 July 2015.
Associate:
Date: 28 July 2015
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