Ahuja & Pandher (No 2)
[2022] FedCFamC1F 690
Federal Circuit and Family Court of Australia
(DIVISION 1)
Ahuja & Pandher (No 2) [2022] FedCFamC1F 690
File number: CAC 1246 of 2022 Judgment of: GILL J Date of judgment: 7 September 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where mother has commenced proceedings of habeas corpus in the C State Court regarding the retrieval of the child of the parties who has been living with the paternal grandparents in Country B for nearly two and a half-years – Where the father is currently not party to the C State Court matter, but where the paternal grandparents are – Where parallel factual findings will be undertaken by this Court and the C State Court pertaining to the removal and retention of the child from Australia to Country B – Where the mother has travelled to Country B to prosecute her case of habeas corpus – Father seeks travel restraint lifted and to have passport returned, with intention to travel to Country B to participate in Country B proceedings – Where father has given an undertaking to the Court to return to Australia when asked – Father removed from watchlist and his passport to be returned. Legislation: Family Law Act 1975 (Cth) s 68B Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 6 September 2022 Place: Canberra Solicitor for the Applicant: Parker Coles Curtis Solicitor for the Respondent: Self-represented litigant ORDERS
CAC 1246 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AHUJA
Applicant
AND: MR PANDHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
GILL J
DATE OF ORDER:
7 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Order 2 of the orders of 4 July 2022, which restrained the father from departing the Commonwealth of Australia is discharged.
2.Order 3 of the orders of 4 July 2022, which caused the father’s name to be placed on the Family Law Watchlist is discharged, and it is requested that his name is immediately removed from that list.
IT IS NOTED THAT:
3.Mr Pandher has solemnly undertaken to this Court, being Division 1 of the Federal Circuit and Family Court of Australia, being a superior court of record, to comply with any order of this Court obliging him to return to Australia or obliging him to return his daughter X, born in 2018, to Australia.
4.Mr Pandher has acknowledged that the undertaking has the force of an order of this Court and the failure to comply with the undertaking may cause him to be prosecuted for contempt of this Court.
IT IS FURTHER ORDERED THAT:
5.Mr Pandher, you are required to execute a document reflecting that undertaking in the Melbourne registry of the Federal Circuit and Family Court of Australia.
6.On:
(a)The father’s execution of a document in the Melbourne Registry of the Federal Circuit and Family Court of Australia reflecting this undertaking; and
(b)The father’s lodgement of a $5,000 cash fund bond at the Melbourne Registry of the Federal Circuit and Family Court of Australia,
That the father is entitled to have returned to him his passport and is discharged from the obligation to surrender it.
7.Should the father not comply with an order for his or X’s return to Australia then, in addition to any other remedy available to the mother, the mother may seek the forfeiture of the bond with any forfeited amount to be made available to the mother to assist in funding her travel to and proceedings necessitated in Country B by the father’s non-compliance.
8.Each party is subject to an ongoing obligation to promptly provide to the Independent Children’s Lawyer any court documents that they file in any court in Country B and any orders or reasons for judgment they receive or have access to from a court in Country B in proceedings concerning each other and /or X.
9.The parties are not excused from their obligations under previous orders to file material in preparation for the proceedings listed in October 2022.
10.The time for the mother to file her affidavit material is extended to 4.00pm on 9 September 2022.
11.The proceedings are listed for further directions, and including for the consideration of listing for any issue as to forum and the potential vacation of the trial dates of October 2022 on 23 September 2022 at 10.00 am, at which stage the proceedings will be an in person appearance unless a party is otherwise excused from appearing in person.
IT IS NOTED THAT:
12.Mr Pandher advises that his current telephone number will be a number on which he is able to be contacted in either Australia or Country B.
IT IS FURTHER ORDERED THAT:
13.Mr Pandher is ordered to maintain current contact details with the Court and with the Independent Children’s Lawyer and with the mother’s solicitors so as to enable him to be contacted if he is in Country B or in Australia at all times.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ahuja & Pandher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
The circumstances of this case are that the child of the parties, X (“X”), born in 2018, is in Country B, in the care of the paternal grandparents. She has been there since early 2020. During that time, the father has also been intermittently in Country B, for a period of approximately one and a half years. The mother accepts or, at least, has previously accepted that X is well cared for, but asserts that her contact with X has been cut off by the paternal grandparents.
The parents dispute the circumstances of X’s retention in Country B. The mother asserts that the father deceived her in causing X to be detained or retained in Country B. The father asserts that the mother abandoned the care of X and that he was required to utilise his parents to assist in that care. There are disputed allegations about family violence.
It appears that X is an Australian citizen. It further appears that each of the parties is an Australian citizen. The mother has identified that she relinquished her Country B citizenship on retaining Australian citizenship and asserts that the same is the case for the father.
The father filed an Application in a Proceeding, which is the subject of today’s judgment, from 24 August 2022, with an accompanying affidavit. In that application, he seeks the discharge of orders initially made ex parte on 4 July 2022. Relevantly, those orders restrain the father from departing the Commonwealth of Australia, placed his name on the Family Law watchlist and directed that he surrender his passports to the nearest registry of this Court. It was contended that the restraint was necessary in aid of enforcement of any determination that X be returned to Australia.
The orders meant that the father would be unable to travel to be with X, to care for X or to support his parents in her care. Despite those issues facing the father, the balance then fell in favour of the restraint being granted. Those matters were identified when the matter returned before me on 27 July 2022, when the father then appeared.
I did not discharge the restraints after hearing from both of the parties but rather, set the matter down for an expedited final determination of a number of the factual matters to take place on 10 – 12 October 2022.
The factual matters that were identified as necessarily requiring a final determination to shape any interlocutory orders, were as to the circumstances of X’s removal to Country B and retention there. Those matters were seen by parties and the Court to require resolution to assist, along with the determination of other matters, to determine what would be in X’s best interests and whether or not, on an interlocutory basis, she should be caused to move from Country B to Australia. That was on the basis that there is an underlying issue between the parties as to whether or not it is in X’s best interests to properly be returned to Australia, a move which would disrupt her current care arrangements and the home that she has been in since she was aged approximately one year old.
At that stage, the proceedings were adjourned for further directions to identify what would need to be resolved at the interim hearing. Those proceedings were adjourned for further directions to 10 August 2022, at which point, the mother surprisingly advised that she had commenced proceedings for habeas corpus in the C State Court. That application was apparently made by her in mid-2022. Little information was provided by her regarding that application at that stage, other than there was an application for a writ for orders now sought.
The proceedings were further adjourned to 26 August 2022 in order to provide further directions as to the factual matters that would require interlocutory determination at the proceedings in October 2022. Immediately prior to the directions, the father filed an application to discharge the orders of 4 July 2022, to enable him to travel to Country B. That application was initially returnable on 26 August 2022, at which stage, it became apparent that the mother was then no longer in Australia but was in Country B, prosecuting the habeas corpus proceedings, which were listed in the C State Court on that day.
On that day, it was suggested by counsel for the mother that potentially, the C State Court may determine that these were matters for the Australian Court to deal with rather than that Court.
The orders that the father sought, to be released from the restraint preventing him to travel to Country B, were opposed. They were opposed in part because the application had been made on short notice and as immediate discharge did not fix the issue of attendance by the father at the proceedings in Country B, the proceedings were then adjourned again to 2 September 2022 for the determination of the father’s application in a case.
The mother was directed to file an affidavit in response by 12.00 pm on 30 August 2022, with specific directions to give evidence as to the current status of the proceedings in the C State Court. The mother did not file a response, but her continued opposition to the father’s application was clear. She did not file an affidavit until just prior to 4.00 pm on 1 September 2022, which affidavit did not contain the full details of what had occurred in the C State Court. She asserted that she would provide a further update to the Court on 2 September 2022. It was unclear why she chose not to disclose the whole of the circumstances of the proceedings in the C State Court in her affidavit.
The mother advised the Court that she expected the C State Court to determine the matter in late 2022, as again, it turned out that those proceedings had been listed on the same day as the proceedings here. She advised the Court that if the proceedings in that Court were resolved in her favour, she intended to remove X from Country B to Australia in the following day or so, having tickets booked for her and X’s travel. The mother continued to oppose the discharge of the orders restraining the father from travelling to Country B.
She alleged that threats had been made in early 2022 by the father that if the mother tried to take X, he would do certain things that included an alleged threat to have a third party intervene and cause harm or death to the mother’s sister’s child. That was a threat that was not apparently conditional on the father’s presence in Country B. There was no indication that any steps had been taken in support of such a threat.
The mother further asserted that the father may disrupt the mother’s then current progress with X, as the C State Court had made orders that provided for the mother to spend some regular time with X in the home of the paternal grandparents, pending the resolution of the proceedings in that Court.
The mother raised safety and other concerns if the father was to travel to Country B. The mother raised questions as to the ongoing status of X remaining in Country B, asserting that as X was an Australian citizen, it was not clear to her what X’s entitlement was to remain in Country B.
The mother recited a history of X’s removal to Country B in early 2020, with her consent, by the father. She recited in that history that the father had returned to Australia on the basis that the mother’s father had died in 2020 and, further, that on 20 March 2020, the borders had closed in respect of the then COVID crisis, whilst X was left stranded in Country B.
The mother again alleged violence as she had previously recited in her affidavit material. She asserted to the Court that the father was not required to travel to Country B as he was not a named party. It should be noted that in her previous material, the mother had asserted that she had not named the father as a party or included him in the proceedings so that he could not use the habeas corpus proceedings as an excuse to go to Country B. The mother also asserted that neither the father’s parents, who are parties to the habeas corpus application, nor the mediator that the Court directed that the parties attend upon had requested the father’s involvement. The mother further asserted, without the support of expert evidence, that by Country B law, she is the natural guardian of X. She asserts that X has been detained by the paternal grandparents.
It may be accepted that the father is not as yet a party to those habeas corpus proceedings, but it may also be accepted that the mother has engaged in that litigation reliant on her interests in the subject matter as a parent, where the mother prosecutes her case as a parent in what is claimed by her solicitor as being in the parens patriae jurisdiction of the C State Court. Even without assuming an equality of status for the mother and father, it is strongly suggestive that it is a matter in which the father will also have standing or, at least, some other interest, particularly where the only suggestion as to why the father is not currently a party to the proceedings is the choice by the mother to deliberately exclude him as a party.
The practical subject matter of the litigation in the C State Court is the return of the child to Australia. Even though the actual subject matter may be the release of the child to the mother, the practical consequence is the return of X to Australia. That equates, in many ways, to the question being determined here on an interim basis, albeit on potentially different grounds, there being no clarity as to the role of best interests, save what may be inferred by the mother’s claim that the proceedings are being conducted in the parens patriae jurisdiction of that Court.
The mother has commenced parallel litigation on the same subject matter in the face of the issue that it may not be in X’s best interests to return her at this stage, with the advantage that she has restrained the father in Australia while, without notice to the Court, she travelled to Country B to prosecute such. The mother remains somewhat coy as to what is actually transpiring in the Court in Country B. This Court has now been provided with the orders made by the C State Court in late 2022, by virtue of the mother’s solicitors forwarding them to the Court.
The orders then made by the C State Court directed the further filing of evidence by the mother and the paternal grandparents to take place a short time later in 2022, when the proceedings were again listed in that Court, which again coincided with the further listing in this Court. The direction given to those parties was to file evidence to address the circumstances of X’s removal to and retention in Country B in the care of the paternal grandparents. It may be observed that that request from that Court parallels significant portions of the factual contest that has been set down in October to be resolved by this Court.
The proceedings in the C State Court were subsequently adjourned again, this time to a few days later, a date that the father said he wishes to appear in that Court to assert his resistance to the orders. In the meantime, the mother has returned to Australia and is present in Court both yesterday and today in relation to these proceedings, but is continuing to prosecute the habeas corpus claim in the C State Court via local lawyers. She continues to oppose the release of the restraint that has been imposed upon the father.
The basis that she primarily puts forward is one of risk, being principally a risk that if the father exits the jurisdiction, then maybe he will decline to return, or more importantly, decline to return X on further orders made by this Court requiring him to do so. The corresponding risk is as to X being deprived of benefits that may flow from a meaningful relationship with the mother and potentially, the father, if he was to return to Australia. Though, if he was to return to Australia, then the situation would be there would be a means of compelling him to return X to Australia, in any event.
The risks of non-return are deduced from, firstly, the fact that the father is the one who took the child to Country B; secondly, that the father has effectively retained her there; thirdly, the mother alleges that this conflicted with an agreement between the parties; fourthly, that it is the case that the father opposes X’s prompt return. The mother alleges that the father is untrustworthy and is not assuaged by the father’s preparedness to offer a $5,000 bond and undertaking in support of his assertion that he will return. She says there is insufficient evidence to show that the father should be released from the restriction.
The father, on his part, says that he does not oppose X’s ultimate return to Australia, as he says that it is his intention that X should ultimately return to live here. He, however, opposes this occurring in any other manner than an appropriate one, on the basis that Country B and the paternal grandparents have been her home for two and a half years, since she was one year old, with the father having been there for approximately one and a half of those years. He says that her return to Australia will have to deal with upset and potentially, serious impact upon X by that change of circumstances.
He identifies further potential serious impact on X being taken from there and brought to Australia by the mother, who he asserts is, by virtue of her alleged abandonment of X, a stranger to X, albeit, it may be taken that the mother is not, on any account now, a complete stranger to X, given that she has been exercising time in accordance with the orders made by the C State Court. The father, however, says he will comply with any order that he return or X returns to Australia, so as not to undermine his status as what he describes as a “good father”, and says that he will comply as an “honest father”. He asserts that he wants to go to Country B to support his daughter in what he perceives to be a crisis, as, on his account, it may be, and to put facts before the Court in Country B.
The ICL supports, while the proceedings instituted by the mother for habeas corpus in Country B remain on foot, the father’s release so that the proceedings in Country B that deal with X’s immediate circumstances are not undermined by potential procedural unfairness. That is counted as in X’s best interests as, inferentially, it impacts on the integrity of the proceedings that are dealing with her potential placement into the mother’s care. That is, the ICL’s position is that X’s interests are served by a procedurally fair process in that country.
The ICL further notes a serious imposition caused by the nature of the restraint that has been placed upon the father, as it impinges upon his freedom of movement. The ICL notes that with multiple adjournments of the Country B proceedings, there is no guarantee that the proceedings will be resolved promptly. The ICL further notes that the Court here is acting with limited knowledge of the Country B proceedings, in the absence of the mother providing information from her lawyers, and also with little evidence from the father regarding his prospects of intervention there.
The Independent Children’s Lawyer asserts that there is insufficient evidence to maintain the current restraint upon the father. The ICL further notes that if X was to be returned to Australia, there is a real question as to who X should live with on her return and who it should be who ought to bring X back to Australia and notes that absent further evidence, it cannot be determined whether a particular bond would be too onerous for the father or sufficient to ensure his return.
In some answer to that, the mother sought an adjournment of proceedings such that the father file a financial statement. That is an application that will not be granted as further adjournment of the proceedings will defeat the proper consideration of the subject matter of the proceedings.
Importantly, despite the prospect of release of the father from the restrictions that has been on the table since, at least, the filing of his application, and despite the mother’s opposition to the prospect of the father travelling to Country B, at no point has the mother offered any form of forbearance in the Country B proceedings to ameliorate the impact of the restraint on the father. Rather, she has bluntly acknowledged the pursuit of what is peremptory relief to return the child here, in the face of proceedings instigated by her here, designed to answer that very question.
So the current proceedings, as evidenced by the court documents, are that the C State Court is in the process of consideration of factual matters listed here for final determination in October 2022. Those proceedings are practically, even if not technically, aimed at the resolution of the immediate return issue. They are litigated by the mother in the face of the proceedings here, in a manner deliberately designed to exclude the father, and presently aided by the restraint put in place here in aid of the proceedings in this Court.
The risks are, if the father is released, that despite his assurances, he may not return, thereby frustrating the jurisdiction of this Court, leaving litigation, if any, to be potentially pursued in Country B, litigation which the mother has shown herself capable of undertaking by her application before the C State Court. Against that, there is a risk of a potentially harsh removal of X, by virtue of proceedings that the father is not at liberty to attend to participate in. However, even if he can and does participate, there is no guarantee that such a result would not occur or that X would ultimately experience that removal as being harsh.
It may be seen that either approach carries risk and either approach is potentially deleterious to X. Those combined risks, however, do not clearly throw the balance one way or another in considering, on limited information before this Court, what is in X’s best interests. However, importantly, to maintain the restraint is to use this Court’s processes as an instrument of oppression, as the mother continues to conduct the proceedings in Country B in a manner admittedly designed to exclude the father, with such exclusion being facilitated by the orders of this Court.
In these circumstances, it is neither just nor convenient, which are the operative considerations pursuant to the injunction made pursuant to section 68B of the Family Law Act 1975 (Cth), to maintain the restraint. The restraint was not put in place to prevent the father from participating in proceedings instituted by the mother in Country B. The institution and maintenance of those proceedings by the mother calls for the father to be at liberty to support the participants, and where he is a person with an apparently legitimate interest as a parent, to participate in those proceedings. Where the contest relies in part on the risk of harm to the mother, it is the mother’s instigation and continuation that is the motive calling for the father’s return. Despite that prospect, as noted before, the mother has at no stage offered to desist or to defer those Country B proceedings.
It may be considered, where the father has a legitimate interest in the outcome of the proceedings in the C State Court, the child’s interests are not supported by an asymmetric contest that excludes him, particularly where there is such overlap of factual issues as pursued by this Court and as now revealed by the papers from the C State Court. While although no indication was given by the father that he would not return if required to do so, the release of the father removes the certainty of such. However, in the circumstances already identified, it remains neither just nor convenient to maintain a restraint which is being used as such an instrument of oppression. Accordingly, the orders will be discharged insofar as they maintain that restraint.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 7 September 2022
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