Adanti and Coli (No. 2)

[2017] FamCA 1106

FAMILY COURT OF AUSTRALIA

ADANTI & COLI (NO. 2) [2017] FamCA 1106

FAMILY LAW – PRACTICE AND PROCEDURE – Where one sibling is living in Australia and the other is living in Country D –where the mother seeks parenting orders with respect to both children and the father seeks orders with respect to the child living in Australia– orders were made for the children’s and the father’s name to be placed on the Airport Watch List – orders were made providing for the father to do all acts and things to return the child to Australia – orders were made for the preparation of a s 11F report – where father seeks a stay of the order restraining him from leaving the Commonwealth of Australia – where mother seeks enforcement of interim property orders – where the mother made an oral application for the return of the child to Australia on a specified date  – ordered that the father’s application for a stay be dismissed – ordered that the child be returned by a specified date

Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Ms Adanti

RESPONDENT: Mr Coli

FILE NUMBER: MLC 5650 of 2017

DATE DELIVERED: 22 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 14 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McLeod

SOLICITOR FOR THE APPLICANT: Ebejer & Associates

THE RESPONDENT: In Person

Orders

1. The mother is granted leave to make an oral application requiring the child C born … 2012 (“the child”) to be returned to the Commonwealth of Australia by a specified date.

2. It is hereby ordered that the father do all acts and things to return the child to the Commonwealth of Australia by 16 February 2018.

3. The father’s Application in a Case filed 31 July 2017 is otherwise dismissed.

4. The mother’s application for interim parenting orders as set out in her Initiating Application filed 9 June 2017 and her Application in a Case filed 24 November 2017 be adjourned to the Senior Registrar’s Duty List on 27 February 2018.

5. Leave is granted to the parties to apply on short notice for an urgent hearing in the event that the child is returned to Australia prior to 16 February 2018.

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 Adanti & Coli (No. 2) 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).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5650  of 2017

Ms Adanti

Applicant

And

Mr Coli

Respondent

REASONS FOR JUDGMENT

1. The children the subject of these parenting proceedings are B (“B”), born in 2009 (now eight years of age), and C (“C”), born in 2012 (now five years of age).  The children were born in Australia and are both Australian citizens. The child B lives with the mother in Australia. The child C is in Country D.

2. On 18 July 2017 I made orders on the application of the mother, inter alia, restraining the father from leaving the Commonwealth of Australia until further order and placed his name on the Airport Watch List at all points of arrival and departure in the Commonwealth of Australia. I also restrained the father and the mother from removing the children from the Commonwealth of Australia and similarly placed their names on the Airport Watch List. I also made orders that the father do all acts and things required to return the child C, who was at that time in Country D, to the Commonwealth of Australia. I further ordered that upon her arrival in Australia, C live with the father and the parties were to attend upon a family consultant for the purposes of a s 11F assessment. The matter was otherwise adjourned for further hearing in the Senior Registrar’s Duty List on 31 July 2017. In my ex tempore reasons delivered on 18 July 2017, I noted that the father had given instructions to his solicitor that it was his case that the child be returned to Australia for the purposes of the s 11F assessment.

3. It was common ground at the hearing before me on 18 July 2017 that C’s passport was to expire on 25 July 2017. Notwithstanding the father’s instructions with respect to the return of the child to Australia and her availability to attend the s 11F assessment, she was not returned to Australia prior to the expiration of her passport. Although there has been some difficulty renewing her passport, it now appears that a passport will be issued for the child within 24 hours of this most recent hearing.

4. The mother was born in 1988 in Country D and is currently 29 years of age.  The father was born in Country D in September 1965 which makes him 51 years of age.  The parties commenced a relationship and cohabitation in 2007 and were married in Australia in 2008.  They separated in July 2015 in Country D but the mother says remained living separately and apart under the one roof in Country D until July 2016.

5. On 28 July 2017 the father filed a Notice of Appeal and on 31 July 2017 he filed an Application in a Case seeking a stay of paragraphs 1, 2, 3 and 4 of the orders made on 18 July 2017. That application was listed for hearing together with all extant applications in the Senior Registrar’s Duty List on 31 July 2017.

6. The matter was thereafter adjourned to the Senior Registrar’s Duty List on 2 August 2017 and orders were made by consent inter alia that:

   1.   That the parties both do all things and sign all documents as may be required to obtain an Australian and an Country D passport for the child [C] (female) born … 2012 (“the child”), with the passports to be held by the Registry of the Family Court of Australia in Melbourne pending agreement in writing between the parties or Court order.

   2.   That within 21 days each party provide to the other copies of all reasonably requested discoverable documents with same to take place by mutual exchange.

   3.   That until further order the husband pay to the wife the sum of $365 per week to be paid by direct credit into the wife’s Commonwealth Bank Account …55, commencing 7 days after the date of this order.

   4.   That until further order the husband meet interest only payments on the mortgage encumbering the property at [F Street, Suburb E] and all outgoings in respect of same, with the husband to contact the Bank within 7 days to reach agreement in relation to a plan to meet any arrears.

   5.   That within 21 days the husband pay to the wife’s lawyer, as and by way of partial property settlement, the sum of $10,000 and a further $10,000 21 days thereafter.

   6.   That until further order the wife have sole use and occupation of the former matrimonial home, save for the purpose of the husband collecting his personal property at a time and date to be agreed within 14 days.

   7.   That the further hearing of this matter, including the Application in a Case filed by the husband seeking a stay of the orders made on 18 July 2017 be adjourned to the Honourable Justice Macmillan on 25 September 2017 at 10:00am

7. As outlined above, the father’s application for a stay of the orders made 18 July 2017 was adjourned by consent for hearing before me on 25 September 2017 and it was noted that the parties intended to convene a private mediation to resolve all matters of dispute between them.

8. For reasons having nothing to do with the parties in this case, the father’s application for a stay could not be dealt with as proposed on 25 September 2017. However on 21 September 2017, the mother filed a further Application in a Case which was listed for hearing in the Senior Registrar’s Duty List on 26 September 2017. On that date, further orders were made by consent by the Senior Registrar with respect to the financial proceedings and it was further ordered as follows:

   …

   9. That upon receipt of the child’s [C] (female) born … 2012 passport, the Husband will deliver the passport to the Family Court Registry to be held by the Registry until further order or written consent of both parties.

   10. That within 24 hours of being notified of the cost of the passport the Husband will deposit the cost of the passport into the Wife’s bank account number …55 and BSB ….

   …

9. The mother’s Application in a Case filed 21 September 2017 was otherwise dismissed.  On 24 November 2017 the mother filed a further Application in a Case, which was listed for hearing on 30 November 2017. The father’s application for a stay was administratively adjourned by the Court from 25 September 2017 to 2 October 2017, 20 October 2017, 26 October 2017, 24 November 2017 and ultimately listed for hearing before me on 30 November 2017 together with the mother’s Application in a Case filed 24 November 2017. It was thereafter adjourned part heard for further hearing by me on 14 December 2017.  

10.  I will turn first to the father’s Application in a Case seeking a stay of the orders made 18 July 2017, and thereafter the mother’s Application in a Case seeking the enforcement of the financial orders and her oral application for an order specifying a date by which the child C should be returned to Australia.  

Legal Principles

11. Rule 22.11 of the Family Law Rules 2004 (“the Rules”) provides that a party can apply for a stay of orders, but the filing of a Notice of Appeal will not automatically stay the operation or enforcement of an order.

12. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 the Full Court summarised a number of principles to be applied when considering an application for a stay. At paragraph 18 of their reasons, their Honours said as follows:

…The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

·    the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

·    a person who has obtained a judgment is entitled to the benefit of that judgment;

·    a person who has obtained a judgment is entitled to presume the judgment is correct;

·    the mere filing of an appeal is insufficient to grant a stay;

·    the bona fides of the applicant;

·    a stay may be granted on terms that are fair to all parties — this may involve a court weighing the balance of convenience and the competing rights of the parties;

·    a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted — this will be a substantial factor in determining whether it will be appropriate to grant a stay;

·    some preliminary assessment of the strength of the proposed appeal — whether the appellant has an arguable case;

·    the desirability of limiting the frequency of any change in a child's living arrangements;

·    the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

·    the best interests of the child the subject of the proceedings are a significant consideration.

The Father’s Stay Application

13. In essence the father’s case was that although it might be possible for C to travel to Australia either unaccompanied or accompanied by an airline employee, it would not be in her best interests to do so. He further submitted that not only was he the only person who was able to travel to Country D to bring the child back to Australia, but was also the only suitable person to do so and that in order to do so, he required a stay of the order preventing him from leaving Australia.  The father further submitted that he was not a flight risk because he needed to return to Australia to ensure his sister, who lives in Australia, did not lose her house. He had not adduced any evidence to support this assertion. 

14. Although the father did not address the merits of his appeal, that is one of the matters for the Court to consider. The grounds of appeal were as follows:

1.   That the learned trial judge erred in assuming that the children lived “off and on between Country [D] and Australia” from July 2012 and that C’s residence was only in Country D from December 2016 when the husband’s evidence was that the child had never lived in Australia and was a resident of Country D.

2.   That it is submitted that a proper consideration of what is in the child C’s best interests was not properly considered in ordering that she travel to Australia when she has never resided in the country, is a resident of Country D, attends school in Country D and has settled relationships in Country D.

3.   That the learned judge’s assumed finding that the father “was a flight risk” was against the weight of evidence.

4.   That the learned trial judge failed to place sufficient weight on the nature of the father’s business and the effect that the watchlist order would have on his ability to earn an income.

5.   That the learned trial judge made an order which was not practically capable of being complied with.

15. Both grounds one and two of the appeal disregard the fact that the father’s own case was that the child would be returned to Melbourne so as to participate in the s 11F assessment. Although it was his case that as his mother was not well known to the child, he should be permitted to travel to Country D to collect her, I found that that was not consistent with his mother’s comments from the body of the Court at the hearing on 18 July 2017. The father did not submit at that hearing, nor is there any other evidence that his mother, notwithstanding her age, was then or is now otherwise unable to travel to Country D for the purposes of collecting the child and returning her to Australia.

16. Although ground three of the father’s appeal was to the effect that I did not give proper consideration to the child’s best interests in ordering that she be returned to Australia, this similarly appears to ignore the fact that it was the father’s case that she would be returned to Australia.

17. Even if the prospects of success of the father’s appeal are good, which I am not satisfied they necessarily are, the possibility of the father being free to return to Country D and thereafter not returning to Australia with the child in my view outweighs the prejudice to the father of being required to remain in Australia until the child can be brought to Australia. The mother would, in those circumstances, not only potentially lose the benefit of the judgment in her favour but also the prospect of any ongoing relationship with the child C or there being any relationship between the two children. This has the potential to significantly impact on the welfare of both children.

18. Notwithstanding the father’s submission that he was not, as he described it, a “flight risk”, the way in which he put his case left me with little confidence that if a stay were granted, he would return to Australia with the child or submit himself to the jurisdiction of this Court.

19. As submitted by counsel for the mother, there are a number of issues with both the father’s submissions and his evidence that impact upon my assessment of his bona fides generally and the likelihood of him returning to Australia with the child if permitted to leave. These include that, notwithstanding the father’s case that the child would be returned to Australia for the purposes of participating in the interviews for the s 11F assessment, this did not occur before her Australian passport expired on 25 July 2017. It is also the case that whilst submitting to the Court that he would sign whatever documentation might be required and do whatever was necessary to renew the child’s Australian passport, as deposed to by the mother in her affidavit filed 12 December 2017, when the father attended her lawyer’s office on 8 December 2017 he refused to sign the child’s passport form, claiming it was the wrong form before finally signing the application on 12 December 2017.

20. The father’s assertion that he is the only person who could accompany the child to Australia also does not, in my view, bear close scrutiny particularly in circumstances where he deposed in his affidavit filed 31 July 2017 that his new wife could travel to Australia with the child once she obtained the necessary visa.

21. His submission that his new wife cannot now travel to Australia with C because she has responsibility for her own child in Country D is also, in my view, unsustainable in circumstances where, as the father disclosed during the course of the hearing before me, she has spent approximately two months in Australia, leaving her son in Country D during that time.

22. Although I accept that the father’s new wife would need to apply for a new visa in order to travel to Australia with the child, even on the father’s case it would take at most 30 working days to obtain that visa. 

23. I note that in so far as the father submitted that neither his mother nor sister could travel to Country D to collect and return the child to Australia, there is no evidence to support that assertion.

24. In so far as the father submits that there is an urgent need for him to return to Country D to attend to his business, I note that although some of the delay in hearing this case lies with the Court rather than the parties, it is also the case that the parties consented to an adjournment of the application for a stay for some two months after the orders were made. The father in his affidavit filed 31 July 2017 deposes to travelling between Australia and Country D on a regular basis and asserts that he is unable to adequately run his business in Country D whilst in Australia. Although he has filed two further affidavits since filing that affidavit, there is no evidence based upon which it would be possible to conclude that the father has been unable to maintain his business interests in Country D.

25. Although the father did not make the necessary arrangements to have the child returned to Australia for the purposes of the s 11F assessment, he did attend the appointment with the family consultant. According to the report the father told the family consultant that although he and the mother had discussed the possibility of C returning to Australia, he had changed his mind because he and the mother “are in dispute” and she had taken the matter to Court. He was also reported to have told the report writer that he was “entitled” to do as he wished in relation to the children’s living arrangements. Although the evidence of the family consultant is untested, the father’s attitude as described by the family consultant is concerning in circumstances where he is seeking a stay of the order which prevents him leaving the Commonwealth of Australia. I am also mindful of the family consultant’s observations as to the likely profound psychological impact of the ongoing separation of the children as a result of which each of the children “may likely suffer long term consequences.”

26. It is also the mother’s case that the father has demonstrated a general disregard for the orders of this Court, in that although the father has made some of the payments he is required to make pursuant to the consent orders of 2 August 2017, he has not met all of those payments or provided full and frank disclosure as that order requires. Although the father also asserts that the mother has not provided full and frank disclosure, both the father’s attitude to the proceedings and his failure to comply with orders of this Court are a concern in the context of this application for a stay. 

27. In circumstances where the father concedes that the child C has been living with his new wife since he travelled to Australia in mid-2017, where she has lived with the maternal grandfather for a period of approximately two months when the father’s new wife was in Australia, in addition to his concession that his new wife would be able to obtain the necessary visa to travel to Australia in at most 30 working days, and where the mother has made it clear that she would not oppose the discharge of the order restraining the father from leaving the Commonwealth of Australia once the child is returned to Australia, I am not satisfied that I should grant a stay of the order as the father seeks. I am satisfied that the gravity of the implications for the children if a stay were to be granted and the father failed to return to Australia, far outweighs any disadvantage the father has demonstrated and I do not propose to grant a stay of the orders made on 18 July 2017. Clearly, given the mother’s stated position, the sooner the child is returned to Australia and the matter is heard by the Court, the sooner the father will be able to travel to Country D.

The Mother’s Application in a Case

28. The mother in her Application in a Case filed 24 November 2017 sought orders requiring the father to pay her the sum of $2,000 to enable her to purchase tickets for herself or her agent and the child to travel to Australia and also sought an order that the father facilitate the handover of the child to her or her agent at City G airport. The mother’s case is now, and given the evidence there is some basis for the view she has formed, that even if she were to travel to Country D to collect the child, it is unlikely that the child would be delivered to her care. In circumstances where even the father concedes his new wife should be able to obtain a visa to travel to Australia within 30 days, the mother now seeks an order requiring the father to return the child to Australia by a specified date. In all of the circumstances, I am satisfied that I should grant the mother leave to make an oral application and propose to accede to that application and make the order she seeks.

29. I propose to allow the father the 30 days he says it might take for his new wife to obtain a visa to travel to Australia. At my request the parties made enquiries as to what, if any, days the Australian Embassy would be likely to be closed over the Christmas period and I also propose to take those days into account when I calculate the thirty business days the father says may be required. Based upon the Australian Embassy in City G being closed on 25, 26 and 27 December 2017 and 1 January 2018, I propose to make the date by which the father is required to facilitate the child’s return to Australia the 16 February 2018 which allows the father a little more than the 30 days he says might be required.  

30. Finally in her Application in a Case, the mother sought orders by way of enforcement of the financial orders made 2 August 2017. However in circumstances where the parties have received an offer and have now agreed to the sale of the property in Suburb E, $120,000 of the net proceeds is to be retained in trust and the mother is to receive the balance of the net proceeds, she did not pursue her application for enforcement on the basis that adjustments can be made at a later date to take into account those amounts the father should have paid.   

31. In these circumstances, I propose to adjourn the mother’s Application in a Case filed 24 November 2017 for enforcement and her application for interim parenting orders as set out in her Initiating Application filed 9 June 2017 to the Senior Registrar’s Duty List at 10.00 am on 27 February 2018. I also propose to order that the father be required to notify the wife forthwith upon the child C’s arrival in Australia and grant the parties liberty to apply at short notice in the event that the child is returned to Australia earlier than anticipated. Although the orders provide for the child to live with the father until further order pending her return to Australia, the mother will no doubt want to seek orders with respect to spending time with the child if the parties are unable to agree upon suitable arrangements and the father may want to seek the discharge of the Airport Watch List order.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 22 December 2017.

Associate: 

Date:  22 December 2017