Astin and Harlow

[2014] FamCA 133

FAMILY COURT OF AUSTRALIA

ASTIN & HARLOW [2014] FamCA 133

FAMILY LAW – INJUNCTIONS – Airport travel restriction imposed on a 16 year old child by police based on what mother said to them and on their concern she was unaccompanied and travelling on a one way ticket to Malaysia – Mother subject to s 118 order – Father has sole parental responsibility – No basis for mother’s concerns – Injunction refused.

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Astin

RESPONDENT: Mr Harlow

FILE NUMBER: BRC 5262 of 2008

DATE DELIVERED: 19 February 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 February 2014

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Waller

SOLICITOR FOR THE RESPONDENT: M & K Lawyers

Orders

1. That to the extent that it is necessary to say so, the child D born … March 1998 from the father’s application has permission to travel internationally.

2. That any restriction imposed as a result of the actions of the mother may be removed.

3. That a copy of this order be provided to the Australian Federal Police for noting on the Department of Immigration and Multicultural Affairs records relating to international travel by children.

4. That the application of the mother for interim orders filed on 28 January 2014 is dismissed.

5. That the application in a case filed by the mother on 30 January 2014 and the response thereto filed by the father on 12 February 2014 are struck out and dismissed respectively.

6. That the substantive application of the mother filed 29 January 2014 and the response of the father thereto are both stayed until further order pending the determination of any application by either for leave to bring those substantive proceedings having regard to the orders of the Court made on 26 June 2006.

7. That the reasons this day be transcribed and be made available to the parties.

8. Reserve the costs of the father of this day.

9. That until further order, the respective substantive applications be removed from the list of cases awaiting a hearing to be reinstated only upon the order of a judge as indicated above.

10. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Astin & Harlow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: BRC 5262 of 2008

Ms Astin

Applicant

And

Mr Harlow

Respondent

REASONS FOR JUDGMENT

1. On 28 January 2014, Ms Astin, to whom I shall refer in these reasons as “the mother”, filed an amended initiating application which has been transferred to me today by Registrar Field.  Two days later, on 30 January 2014, the mother filed an application in a case, which was returnable today, so that probably indicates how it got before the court this morning.  As it transpires, the mother has sought to not proceed with that application in a case. 

2. The father is Mr Harlow, and I shall refer to him in these reasons as “the father”.  He filed a response to the application in a case on 12 February.  Having regard to the mother’s application in a case being sought to be struck out, Mr Waller, on the father’s behalf, is not proceeding with that response, and that is therefore dismissed.  

3. The starting point in this case is, really, to go back to 2006.  In 2006 the matter was before Barry J in Brisbane.  On 26 June 2006, his Honour made orders which, ironically, appear to me to be by consent, and the following order appears:

   That neither party file any further application in relation to parenting orders or arrangements in any court having jurisdiction under the Family Law Act 1975, as amended, without first obtaining the leave of the Family Court of Australia to do so.

4. That seems to have slipped by quietly, and hence, proceedings were begun in the Federal Circuit Court on 17 December 2013. Judge O’Sullivan, having before him an application for parenting orders, filed 8 November 2013, went through some of the history of the matter, but then made an order that, pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth), the proceedings be transferred to this court.

5. The logic behind transferring it was the history of the case in this court, and in particular, his Honour referred to a decade of litigation.  His Honour was obviously not aware that there was a restriction on the parties bringing proceedings without leave of the court.  As Mr Waller has indicated, it probably would be trite for the court to now refuse to hear the mother’s substantive or interim application because of the 2006 order and having regard to the history that has unfolded over the last few months.

6. I propose, therefore, to give the mother leave nunc pro tunc to bring this application.  If she intends to bring a substantive parenting application then a proper application needs to be made.

7. That said, what I am dealing with today is the application, filed on 28 January 2014, which sought 11 orders.  When pressed, the mother seeks orders number 3, 5, 6, 7 and 8.  She seeks an order that an Independent Children’s Lawyer be appointed to oversee the care, welfare and development of the child D, (“the child”), who was born in March 1998. 

8. To the extent that that order seeks some sort of welfare role, or supervisory role, or indeed, counselling role, for an Independent Children’s Lawyer, it is clearly misguided, and a misunderstanding of the provisions relating to the role of the Independent Children’s Lawyer, as set out in the Family Law Act 1975 (Cth) (“the Act”). But, in any event, it is inappropriate that I make that order today. It may be that a judge decides that a parenting application cannot be brought because of the provisions of the 2006 order. I therefore propose not to make that order and, indeed, I refuse it.

9. The next is the following:

   That communications gateway is open between the child, [D], and her mother, [Ms Astin]. 

   That, too, suffers the same fate as the order seeking an Independent Children’s Lawyer, because it may be that the court refuses to re‑open the case.  Not only is there a consideration of whether the court should grant leave to bring the proceedings, but the mother would then no doubt face the problems sometimes set out in Rice & Asplund (1979) FLC 90-725. I therefore refuse to make that order.

10. The next relates to the father being restrained from removing or causing or allowing the child to be removed from the Commonwealth of Australia.  That is the critical issue that I am determining here today.  And, consistent with that, the mother seeks an order that the child’s passport be held by the court.  If there is no basis for the injunctive order, then there is no basis for the court to hold the passport.

11. The other order that the mother seeks is what is described as a PACE alert, to be issued enabling the Australian Federal Police to place the child on the Airport Watch List.  That is, perhaps, redundant now, having regard to the fact that I am dealing with the application as I am.  If, indeed, the court was to make an injunctive order, it is that injunctive order that is placed on the Immigration Department records, which are in fact enforced by the Australian Federal Police.  There is, therefore, no basis for me to make an order in number 7.

12. The other orders that were sought are not pressed, nor could they realistically be pressed, because they seek various subpoenae, the matter be heard ex parte, and it be listed urgently.  The case has been listed urgently but, indeed, all of those problems are affected by the 2006 order that I have already mentioned. 

13. I turn, then, to what I am really being asked to deal with here, which is an application to preclude the child travelling from Australia.  The starting point of that is an order made by Barry J on 19 May 2010.  That order is noted as having been made in chambers, and when reading the reasons for judgment, it would appear that the order was an alteration to an order that his Honour had made some weeks before. 

14. The critical orders, however, are that his Honour determined the matter so it was not a consent order, and he directed that the child reside with the father, and the father had sole responsibility for all decisions involving the care, welfare and development of the child.

15. Importantly, his Honour went on to say:

    The mother spend no time with the child, save that the specific request of the child, with any such time to be supervised at a contact centre, or supervised in such other form as the parties may agree in writing.

    It is common ground between the parties that the child has not requested specific time, and therefore it seems common ground, also, that no time has taken place for the last almost four years.

16. What seems to have precipitated the application before me today is set out in an affidavit that the mother has been given leave to file.  Although Mr Waller had not seen that affidavit, he indicated that he was content for the court to hear the matter, absent it being served upon him, and I have taken the precaution of indicating to him the issues that are set out in it that might require a response either from his instructions or, indeed, from his client’s affidavit.

17. It seems that on 9 February this year, the mother was contacted by the Australian Federal Police who she described as having intercepted the child at the airport because she was travelling alone to Malaysia on a one‑way ticket.  She said that the Australian Federal Police officer told her that the child indicated that she was going to Malaysia for a holiday, and that somehow gave the Australian Federal Police some consternation because it was a one‑way ticket, and the child was alone. 

18. The mother then set out that Malaysia is not a Hague Convention signatory, and the fact that she would not be having a meaningful relationship if the child was removed there, the Airport Watch order should be made.

19. Further, on that same day, the child, according to the mother, made a distressing telephone call to her the details of which are somewhat sketchy.  In a subsequent paragraph the mother says the following:

    [The child] sounded confused and chaotic with her voice sounding loaded, heavy and breaking, and she was crying, telling me that she, open quote, ‘will need to be in Malaysia so she can have a relationship with me,’ end quote.

    The affidavit goes on to say:

    Her phone call to me was for approximately two minutes.  Then there were noises in the background, and when I started to tell her to calm down, and that I will need to go to the Family Court to sort it out, the phone call was suddenly cut off.  I have not heard anything about the incident from her father at all, and believed at the time he was supposedly in Melbourne.

    The mother then said that she called the Australian Federal Police again, and spoke to an officer by the name of Mr J, who stated that when the child was stopped boarding Air Malaysia, she was ‘Fine about it, and we did not have any welfare concerns,’ and that she was okay.

20. That evidence seems to be consistent with the father’s evidence, which is set out in an affidavit that he filed on 12 February.  He said that on 9 February the child rang her mother to ask her to withdraw the Airport Watch restriction.  Again, it is difficult to understand how the Airport Watch restriction was placed on the child, having regard to the fact that they had no court order, but presumably, they were doing it on some cautious basis.  The father says that later that day, officers from the Child Protection Unit arrived at his door and told him that they had been contacted by the mother who was concerned about the child’s emotional state.

21. He explained to them what had occurred earlier in the day at the airport and showed them the order of 19 May 2010, which they read, and they told him that they would not be taking the matter any further.

22. When I asked the mother what evidence should enable me to make an injunctive order, she observed that, in her view, there was a risk that the child might not come back.  The dilemma with that evidence is in two things.  First, even on her own evidence, the child had been overseas and had returned on 2 February.  The second is that the comprehensive evidence of the father, as set out in his affidavit to which I have referred, shows that he is conducting a business in Malaysia which requires him to travel internationally.  He has taken the child out of her private school and placed her in a distance education system about which he is extremely complimentary. 

23. He set out in some detail in the affidavit how well she is succeeding in that environment.  Needless to say, when she is in Australia and not able to be cared for by her father, his evidence is that his parents live very close by and they take up the care of the child.  I also take into account, this child is nearly 16 years of age, so to some extent, she will have a very strong view about her own future.  There does not seem to me to be, therefore, any basis upon which I can find a risk that this child will not return to Australia. 

24. Even if that was not so, the question about her relationship with her mother is a vexed one but his Honour’s orders in 2010 left the arrangements, if any, between mother and child, in the child’s hands.  I take into account that at that stage the child was just a teenager. 

25. The second reason why the mother urges the court not to let this child travel internationally is that she says that her daughter lied to the police about going to Malaysia for a holiday.  I would not be prepared to draw any conclusion on that evidence on the basis that it is untested and it may very well be that the child was flummoxed by what was otherwise a normal transition for her.  If a police officer said that the child said that, then I would, no doubt, have some concern, but it does not make sense to simply say that the child lied.  I would not, therefore, place any emphasis on that statement. 

26. The third basis is that the mother says that there have been incidents in which the father has thwarted her relationship.  That is not a basis to prevent the child travelling internationally, but certainly a basis for a court to consider whether or not there is a problem with the relationship between mother and child caused by the other parent, and that is a matter for another day. 

27. The fourth issue is that the mother points to the fact that it is against the law for a child to travel internationally in these circumstances. Section 65Z of the Act precludes a party taking a child from Australia in circumstances where there are proceedings pending. Indeed, it creates a criminal offence which is punishable by imprisonment for three years. There are two problems with this particular issue in this case. The first is that there can be little doubt that there was a pending parenting proceeding. The second difficulty is that that was probably inappropriately filed and, indeed, allowed to proceed as far as it did because of the 2006 injunctive orders.

28. Section 65Z(2), however, says that the prohibition in taking or sending a child from Australia is not to be applied if it is done in accordance with an order of a court made under Part VII of the Act, after the institution of Part VII proceedings.

29. I observed in discussion that I am aware of some dialogue going on between the court and the Department of Immigration about whether a sole parenting order is sufficient to satisfy the requirements of s 65Z(2)(b). In my view, it is, but that is a matter for argument. I do not have the advantage of having that argued before me today, but on any preliminary view, a parenting order as defined in the Act gives to the particular parent who has that order, all of the duties, power, responsibilities and, indeed, entitlements that a person would by law have as a parent.

30. It is hard for me to see how the father, having been given sole parental responsibility in 2010, does not have the power to make a determination as to whether or not his child travels internationally in these circumstances.  It seems to me, therefore, that that argument from the mother has no weight. 

31. The next issue is that the mother points to the fact that the father has been less than diligent in providing her with information about schooling and medical issues, both of which seem to be clearly set out in the order of Barry J. 

32. In relation to that, however, the mother concedes that notwithstanding that has been going on for the best part of three and a half years now, no application to have the order varied nor any contravention application has been brought nor any application to vary the 2006 order that has been made.  Thus it is a little rich to be bringing an application now complaining about the fact that she has not been provided with information. 

33. The mother also points to the fact that she has medical concerns about her daughter.  There is clear evidence before the court to show that this child does have some medical problems.  But as the father has sole parental responsibility and the Department has checked on this child in the welfare sense, anything that might be a concern cannot realistically carry much weight without the evidence being properly tested.  I, therefore, would not take that into account either. 

34. The mother also relies on an affidavit filed previously but resurrected and filed again on 8 November 2013 in the Dandenong Federal Circuit Court of a Dr J who describes himself as a consultant psychiatrist.  Attached to his affidavit is a report that Dr J did by way of an assessment in December 2012.  He sets out his qualifications and the various historical background, but the focus of his attention was on the mother’s psychiatric state.  That is not an issue for me in this case.  What the mother uses this evidence for is a statement to confirm the psychiatrist’s view that there is no reason why the mother should not re-establish contact with the child.  The difficulty with that assertion, obviously, is it must have been made in a vacuum because he was not aware that the 2010 orders decided whether or not she has a relationship with her mother. 

35. Dr J goes on to say that he did not believe the risks warranted no contact.  And again, the 2010 order covers that problem.  In those circumstances, Dr J’s evidence is entirely irrelevant to the proceeding before me. 

36. An application for an injunctive order, which is what an airport watch order is, must be founded within the jurisdiction and power of the court. It is quite clearly within the power in Part VII of the Act and therefore, the provisions of Part VII need to be contemplated.

37. Section 65DAA requires the court when making a parenting order to start with the presumption that it is in the best interests of a child that the parents have equal shared parental responsibility.  There are two exceptions to that principle or, indeed, a rebuttal of that presumption, and those are set out in s 61DA.  One of them is in relation to family violence and the other is that it is not in the best interests of the child that such an order should be made. 

38. Leaving aside the question of the third possibility, which is the court needs to contemplate whether it is necessary to make an order in an interim arrangement, I could not find in this case that it is in the best interests of the child for such an order to be made, having regard to the fact that in 2010, Barry J gave this child, the complete control over her relationship with her mother.  It would therefore be inappropriate to make such an order at this stage without at least hearing what the child has to say about what role she wants her mother to play. 

1. In my view, therefore, it is not appropriate that I look at the question of parental responsibility particularly also having regard to the fact that Barry J contemplated that in May 2010 and made the order that his Honour did. 

2. Section 60CA of the Act says that when making a parenting order, the court must apply the principle that the best interests of the child are the paramount consideration. To determine what is in the best interests of the child, the court looks at the provisions in s 60CC.

3. Even if all of those matters were contemplated in 2010, the legislation requires the court to contemplate them at least on the basis of the evidence presented before it.  In this particular case, I will only deal with them fairly simply.  The primary considerations are the benefit of the child in having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.  There is no evidence in respect of the latter, but certainly there is in respect of the former. There is a complaint by the mother that the actions of the father are precluding her from having a meaningful relationship with the child. 

4. The difficulty with that argument on the evidence before me is not only the 2006 order, but the fact that the child in 2010 was given the opportunity to make a decision as to whether she was to have any relationship, let alone a meaningful relationship, with her mother. 

5. The additional considerations are the views expressed by the child.  I have a conflict in the evidence as to exactly what the child was doing on 9 February 2010, but I take into account that at some stage in the future, if leave is given for the proceedings to continue, that issue will no doubt be canvassed. 

6. The court is required to contemplate the nature of the relationship of the child with each of the parents and, again, the 2010 orders make clear that the child is to have the decision-making power in relation to what relationship she has with her mother. 

7. The other provisions in relation to parenting responsibility and so forth can hardly be issues about which I can make any determination today because I have no evidence.  As I said earlier, the mother makes a complaint about the father not having complied with the 2010 orders in relation to information, but neither has she for the last few years brought any application that would enable the court to deal with that issue. 

8. There are no considerations in this particular case in relation to family violence set out in the material that would enable me to make any findings.  The other matters in s 60CC were no doubt contemplated by Barry J in 2010, and on the evidence before me, I would not be able to make any findings.  Accordingly, it seems to me that it is in the best interests of the child that I determine the matter on the simple evidence before me. 

9. Here the child is in the care of her father.  She travels internationally because he travels internationally.  His evidence is that it is part of her schooling that she deals with her education by distance and that in 2013, that worked very successfully.  There is, therefore, no evidence upon which I can make a finding that it is not in the best interests of the child for that situation to continue.  There is, therefore, no evidence upon which I could make a finding that it is not appropriate for this child to leave Australia with or without her father if he makes the decision that it is appropriate to do so. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 February 2014.

Associate: 

Date:  17 March 2014