Bale-Sutch and Bale-Sutch

[2012] FamCA 1

FAMILY COURT OF AUSTRALIA

BALE-SUTCH & BALE-SUTCH [2012] FamCA 1

FAMILY LAW - International travel; discharge of airport watch order. Wife has sole parental responsibility.

Family Law Act 1975 (Cth)

Gin and Hing [2010] FamCA 617
Line and Line (1997) FLC 92-729

APPLICANT: Ms Bale-Sutch

RESPONDENT: Mr Bale-Sutch

FILE NUMBER: MLC 3800 of 2007

DATE DELIVERED: 5 January 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 & 22 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

THE RESPONDENT: In person

Orders

1. That paragraphs 1 and 2 of the orders made 8 March 2007 are discharged.

2. That the Australian Federal Police are requested to forthwith remove the names of the children S born … December 1997 and R born … February 2000 from the Airport Watch database.

3. That the application of the wife filed 7 December 2011 is dismissed.

4. That the order be expedited.

5. That the reasons for these orders be published as quickly as possible.

6. 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 under the pseudonym Bale-Sutch & Bale-Sutch is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC3800/2007

Ms Bale-Sutch

Applicant

And

Mr Bale-Sutch

Respondent

REASONS FOR JUDGMENT

1. Ms Bale-Sutch (“the wife”) seeks orders that she be able to take two children aged 14 and almost 12 overseas for a holiday to the Philippines in the current school holidays.

The application

1. The wife’s application was filed on 7 December 2011. It simply sought that the Department of Immigration be requested to expedite passports for the children. That would apparently have occurred but for the problem that there is an extant injunction made on 8 March 2007 by the Federal Magistrates Court of Australia preventing international travel for the children.

2. It would normally not be necessary for the wife to seek an order that the children’s father (“the husband”) sign documents or obtain his to enable the passports to be issued because in previous proceedings, the wife was given sole parental responsibility for the children.

3. The wife therefore seeks that the international departure injunction order be discharged.

The application was initially made ex parte

1. The application was not served on the husband. The wife asserted that she did not know where he was other than he was in the Philippines. The truth of that was never explored and as it transpired when the husband subsequently gave evidence, his address was the Philippines.

2. Initially I had allowed the wife to proceed on an ex parte basis because she had sole parental responsibility orders, the husband had had no contact with the children for a long time and the Philippines is the wife’s country of birth.

The husband emails the Court

1. After hearing from the solicitor for the wife, I made some orders which would have permitted the international travel.

2. Almost immediately after that, I was handed an email which had been sent to the Court by the husband. It detailed that he was made aware of a proceeding in the Federal Magistrates Court about the children going to the Philippines. In his email, he said he wanted it heard before me for reasons that are not now relevant.

3. I stayed the orders I had made because they were parenting orders. I did not consider myself functus officio to such an extent that I could do nothing further. There are many long-standing authorities indicating that a person who is not provided natural justice has a right to have their side of a case heard.

4. In this case, I was particularly concerned because the husband was asserting that the wife would not be returning to Australia to live and that the children were in danger in going to the Philippines.

5. I directed the solicitor for the wife to advise the husband by email that I would hear his version of the case and if necessary, without him filing material. A telephone hearing was offered the following day and that occurred.

The telephone hearing

1. When the matter came on for the telephone hearing, the husband said that he had read the wife’s application and he opposed it. He said he had read her material and that it was all lies. He said however that he did not wish to “talk” to the wife. I advised him that he had a right to challenge her evidence by cross-examination and that if he did not do so, it was probable that I would accept it. He again declined to cross-examine the wife.

The wife’s evidence and the husband’s responses

1. The wife’s evidence was that parenting orders were previously made and she had sole parental responsibility but there was an order earlier made by Riley FM precluding the parents from taking the children out of the Commonwealth of Australia. The Court file shows that was an order to which all parties consented.

2. There were parenting proceedings before me in 2009 as a result of which orders were made including that relating to sole parental responsibility.

3. The wife said, and I accept, there has been no contact by the husband with the children since January 2010 other than a card and a letter.

4. The wife referred to property proceedings and how they were only recently finalised. This evidence became a point of contention with the husband. He asserted that the solicitor who handled the transaction had given the wife $50,000 too much and he wanted it back. I said I was not prepared to deal with that having regard to the absence of material and the nature of the wife’s urgent holiday application. The husband wanted that resolved as part of a holistic approach. He was of the view that all of the problems that have beset him and the children are the fault of the Court. For example, he had apparently asked for a welfare intervention or check to be undertaken by a Family Consultant and that had not occurred. He rejected my suggestion that the Court was not there just to follow up on things.

5. The wife said that she had remarried and wanted to go to the Philippines with her new husband and the two children. A trip had been booked for early December but that had been delayed because the Immigration Department had declined to issue the passports referring to the 2007 injunction.

6. The wife’s unchallenged evidence was that she is an Australian citizen who has a permanent home here and no intention of relocating. She set out details of the business she conducts with her husband. In his evidence, the husband said that that was inconsistent with other evidence he said he had which showed the wife and her husband to be unemployed. No evidence was produced and no cross-examination of the wife had established that.

7. The wife referred to the house that she and her husband own which is subject to a mortgage. The children are at school here and apparently have ambitions.

8. The wife’s extended family live 45 minutes by plane from Philippines City 1 which she described as a safe area that had been referred to in the government travel advice which she annexed to her affidavit. She acknowledged that there was an unsafe area but it was not where she was going.

9. There is no reason in this case why I should not accept that evidence.

The specific evidence of the husband

1. The husband’s evidence was that the children would not benefit from such a trip but in fact, there would be what he described as “further damage”. He said the place (and I presume he was referring to the Philippines) was dangerous. As he said, he should know because he lives there. He commented that he had been robbed three times and one only had to step outside to see the problems.

2. The husband asserted that the family to whom the wife was going included her father who was a “three time murderer” and who had also been involved in incest. When questioned about the former, he acknowledged that the father had not been convicted because that was not the way things were done there but that he had bullet and stab wounds to prove whatever was being asserted. He said in respect of the incest, the wife had told him about that.

3. The husband maintained that he had given this Court all of the evidence before. There is a distinction between assertion, complaint, gossip and evidence. I know of no such evidence.

4. I reject the husband’s concerns in relation to those matters.

5. The husband then said the children were too young to travel internationally but when I asked what was the appropriate age, he said they should not travel until they were 16. The nonsense of that argument must be seen in the fact that the wife has sole parental responsibility and it is proposed that the children will travel with her.

The potential for the wife to be arrested

1. The husband then said that there was a warrant out for the wife’s arrest in the Philippines for the criminal offence of bigamy. He said that the police were waiting for her. Again, this was said to have been a matter of evidence in the earlier proceeding. The wife (through her counsel) denied any such warrant existed. I again point out that the husband refused to cross-examine the wife.

The finding about the bigamy issue in 2009

1. In the reasons for judgment in 2009, I said:

   At the time the parties met, the husband agreed he had been told by the wife that she had previously been married to [Mr J].  He said her “attitude” was that her first marriage “had been annulled” and on that basis he went through a form of marriage ceremony with her.  The wife’s evidence was that she married the husband “on the presumption” that [Mr J] was dead, that is, no application had been made for any annulment or declaration about her first marriage had occurred.

   In May 2002, when the parties were still living together, the wife made an application in the Philippines for an annulment.  In cross-examination, the wife maintained that she had a belief that [Mr J] was dead when she married the husband.  She had married [Mr J] who was a seaman.  He left almost immediately after the marriage and has not been heard of since.  The wife said that before marrying [Mr Bale –Sutch], she had heard of the sinking of [Mr J’s] ship and his name being listed amongst those whose lives were lost.  Despite that, she applied to the court in the Philippines for an annulment on the ground of “psychological incapacity” of [Mr J].  As the husband’s counsel put to her, it would have been easier to maintain the line that [Mr J] was dead because the husband wanted to clear up the issue.  The wife said that she had already given birth to their first child at that time and the husband wanted to go to Australia.  Thus she said, the approach to the ground of the annulment adopted was the quickest way.  However, according to the husband and not challenged by the wife, the court dismissed her application for the annulment.

   I do not accept the wife’s evidence on this issue.  I find the husband was told that the wife was free to marry him and at that time, it was untrue and it was convenient for the wife to assert it as such.

2. I am not at all sure what to now make of the husband’s evidence about the warrant. Nothing was produced before me to confirm the warrant is still in existence, if it ever was. The husband’s point was that if the wife was arrested, who would look after the children? One must ask the obvious question that if the wife knew of the existence of the warrant, why would she put herself in such jeopardy?

3. I do not find the assertion of the existence of a warrant to be a reason to preclude the children from so travelling.

4. As a result of what the husband has apparently seen on the Facebook accounts of the children, he said he had concerns. He said that their mother was an incompetent parent yet, to my knowledge, he has not made any application nor reported the matter to the relevant state welfare authorities.

What weight to give to the husband’s evidence?

1. Much of the husband’s evidence was said with commentary about this outcome being as he had previously predicted after the 2009 orders precluding him from the children’s lives and it was all the system’s fault in which he included the Court. In the 2009 proceedings, I expressed the following:

   The husband was disruptive in the court room even during evidence of the family consultant who was in part, supportive of the husband’s proposals.  The husband stormed out several times and his counsel endeavoured valiantly to point out the folly of his behaviour.  He was audibly heard to describe the evidence as “crap”.  He was persistent in his disruptive behaviour in commenting that the family consultant had not been prepared to allocate time to observing him and the children.  In respect of that issue, he was the master of his own misfortune.  He chose not to cooperate.  The husband’s evidence that a police officer had applied pressure to ensure that his son made the statement about the incident between the husband and wife in February 2007 was implausible and he did not point to anything to support his contention.

   That snapshot of the husband’s evidence shows what little insight he has even if the child is under some manipulated pressure from the wife or the police.  However, it is the husband’s responses that were of concern indicating that he has little understanding about the impact on the child. 

   The husband’s aggressive nature and the behaviour just mentioned, made his evidence something about which I would be cautious.  Having regard to his assertions that everyone was wrong or was lying except him, I find that he could not be trusted to give an impartial view about anything.  I do not find that I would not accept his evidence unless it was corroborated but rather, I propose to make individual findings based on his specific evidence generally determined according to plausibility.

2. I point to that description because, as a result of the evidence (and commentary) above, nothing has changed.

3. When embarking on the hearing, the matter had been sent to me because it was urgent and the paucity of judicial resources. The husband’s email seemed to suggest I should hear the matter notwithstanding my comments in 2009 to which I have just referred.

The financial matters

1. The husband raised a number of matters associated with what he asserted was money owed to him by the wife. He asked for a bond to be ordered to cover both his money and the security for the return of the children. The former is irrelevant having regard to that absence of any application properly supported by evidence. The latter is also irrelevant in this case because there would be no-one here to enforce the orders as the husband has no ordered time with the children. It is therefore not appropriate to make such an order.

Finding about the evidence

1. On the competing arguments and taking into account the evidence, the wife’s position is much more plausible.

The legal issue

1. This is a parenting matter and as such, the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) prevail.

2. Part VII of the Act provides that each of the parents of a child who has not attained the age of 18 years has parental responsibility for that child. Normally, parental responsibility about decisions for the future of a child means all the duties, powers and authority which by law parents have in relation to a child. It therefore includes questions such as international travel because s 61C(3) provides that parental responsibility is subject to any order of the Court. In this case however, that issue has been determined before and there is no point me dealing with it again.

3. Fundamental to my decision in this case is s 60CA which says:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. 

4. In determining what is in a child’s best interests, s 60CC provides that the Court must consider a number of matters in determining what is in the child’s best interests. I did that exercise in 2009 and nothing has since changed about parenting capacity and responsibility.

International travel

1. The approach to international travel was considered in Line and Line (1997) FLC 92-729 where the factors relevant for consideration in such a case were said to be:

   (a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here); and

   (b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and

   (c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and

   (d)Whether the country of travel is a signatory to the Hague convention.

2. As I said in Gin and Hing [2010] FamCA 617:

   Decisions about international travel are difficult to make because no-one can foretell the future and the decision I have to make here amounts to a leap of faith. The Court determines discretionary matters within the framework of the evidence that it is presented.

The question of risk

1. This case is really about risk to the welfare of the two children in circumstances where what is really being contemplated is a holiday.  In relation to the risk, I find that it is modest.

2. I am satisfied that the wife has ties in Australia and has no sinister motive for wanting to live in the Philippines.  I accept she does not want to live there permanently.

3. I acknowledge that the Philippines is not a signatory to the Convention relating to the abduction of children but the husband is not in a position to be the alternate parent here in any event as a result of earlier findings of the Court.

4. The factors in s 60CC of the Act provide little assistance in this case because of my earlier findings.

5. Accordingly, I am satisfied that it is in the best interests that the two children be able to travel and most importantly, the reasons for the passport watch orders made by Riley FM in 2007 have now disappeared.

6. It is therefore in the best interests of the children that the injunctive orders be discharged.

I certify that the preceding Forty Eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 January 2012.

Associate: 

Date:  5 January 2012