Bant & Clayton
[2019] FamCAFC 198
•5 November 2019
FAMILY COURT OF AUSTRALIA
| BANT & CLAYTON | [2019] FamCAFC 198 |
| FAMILY LAW – APPEAL – PARENTING – Where the father appeals final parenting orders that the child’s time with him be supervised – Where the father lives overseas – Father’s attitude towards fostering a relationship with the child in a supervised setting – Emotional and physical threats to the mother by the father – Whether there exists a risk of harm that the child needs to be protected from – Risk of the child being unilaterally removed from the country and not being returned to the mother – Effect of indefinite supervision on maintaining a meaningful relationship with the father – Where the consequences of the risk materialising are serious – Assessment of risk based on facts and circumstances – Where his Honour’s conclusion as to the existence and magnitude of risk was well open on the evidence – Where his Honour correctly considered supervision of the child’s time and was conscious of the relationship between the child and the father – No error found – Appeal dismissed – Costs order made in favour of the mother. |
| Family Law Rules 2004 (Cth) Sch 3 Hague Convention on the Civil Aspects of International Child Abduction 1980 |
| B and B (1993) FLC 92-357; [1993] FamCA 143 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 H & K [2001] FamCA 687 M v M (1988) 166 CLR 69; [1988] HCA 68 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Slater v Light (2013) 48 Fam LR 573; [2013] FamCAFC 4 |
| APPELLANT: | Mr Bant |
| RESPONDENT: | Ms Clayton |
| FILE NUMBER: | LEC | 310 | of | 2013 |
| APPEAL NUMBER: | NOA | 101 | of | 2018 |
| DATE DELIVERED: | 5 November 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 20 June 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2018 |
| LOWER COURT MNC: | [2018] FamCA 839 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Walker SC with Mr Todd |
| SOLICITOR FOR THE APPELLANT: | Watts McCray (NSW) Pty Ltd |
| THE RESPONDENT: | In person |
Orders
Appeal NOA 101 of 2018 against the orders of Justice Forrest made on 18 October 2018 be dismissed.
The father pay the mother’s costs of and incidental to the appeal fixed in the sum of $3,000, such sum to be paid within twenty-eight (28) days of the date of this order.
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 Bant & Clayton 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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 101 of 2018
File Number: LEC 310 of 2013
| Mr Bant |
Appellant
and
| Ms Clayton |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 11 March 2019 Mr Bant (“the father”) appeals certain of the final parenting orders made by Forrest J on 18 October 2018.
The orders concern child Y, the child of the father and Ms Clayton (“the mother”). Y (“the child”) was born in 2009.
Some factual background taken from his Honour’s reasons will give context to the issues argued on the appeal.
The father is an Emirati citizen who has predominantly lived in the United Arab Emirates (“the UAE”). The mother is an Australian citizen and she presently lives with the child in Australia.
The parties met and began living together in the UAE in mid-2006, being married according to Sharia law in July 2007. The parties separated in July 2013 and the mother and child moved back to live in Australia. Since separation the father has seen the child in Australia.
Up until the time that the mother and child returned to live in Australia, the parties and the child spent regular time in Australia and on some of those visits, the mother and child remained in Australia while the father conducted business in Dubai and other places. In 2012, the mother and the child spent the majority of that year living in Australia together (at [19]).
The child is an Australian citizen and holds an Australian passport. She is also a citizen of the UAE through birth. It appears uncontentious that the Government of the UAE does not recognise dual citizenship of its citizens and, the primary judge concluded that it would not recognise the child’s Australian citizenship (at [15]).
The mother planned to separate from the father on a trip to Australia rather than when they were present in the UAE. Thus, as his Honour found, although return flights were booked for the mother and the child, on 2 July 2013 the mother commenced parenting proceedings in the Federal Circuit Court of Australia, on an ex parte basis, and she also, again ex parte, obtained an Apprehended Violence Order in a Magistrates Court for her and for the child’s protection.
In November 2013 final parenting proceedings between the parties were determined by Kent J who made orders that the parties have equal shared parental responsibility save for the issues relating to where the child lived and any travel by the child which were left to the mother. The orders also provided for the child to live with the mother and that she spend time with the father subject to the time being spent within a radius of 20 km of the child’s residence and on condition that the father’s time with the child was supervised. His Honour enjoined the father from removing the child from Australia and other orders were made supporting the injunction, such as restraining the father and or his agents from obtaining passports or travel documents for the child as well as placing the child’s name on the All Ports Watch Alert System.
The father’s application in those parenting proceedings was that the child immediately return to the UAE and, if the mother declined to return with the child, then the child live with him. It was then, and remains the mother’s position that she will not return to the UAE either permanently or temporarily.
The father appealed from his Honour’s orders and the appeal was allowed in part, in so far as the challenge to the order that the child’s time with him be supervised. The balance of the appeal was dismissed.
The father’s application for special leave to appeal to the High Court was refused in April 2016.
So it was that the limited question of the time the child spends with the father and whether it be supervised and for how long any supervision was to continue was remitted to Forrest J for re-determination.
On 18 October 2018 his Honour ordered that the child spend time with the father when he is in Australia at all times and places as agreed between the parties. Failing agreement between the parties as to times, the primary judge made orders for block periods of time of sixteen days to occur three times each year, the number of days in the block periods increasing each twelve month period. His Honour ordered that the time spent between the child and the father be supervised by an agreed commercial supervisor.
The father appeals his Honour’s orders that require the child’s time with him to be supervised.
There was no contention that the child and the father enjoy a warm, loving and comfortable relationship and the child is keen to spend more time with her father than at present. Notwithstanding the breadth of the orders for time made by the primary judge, the father has not taken full advantage of them; rather he has seen the child six times in the period since the order was made. When not spending time with the child face to face, the father and child speak regularly by Skype or similar means.
There is no doubt that the father is deeply opposed to his time with the child being supervised and his evidence was to the effect that if that order was maintained he would be less interested in visiting the child in Australia.
His Honour concluded that this expressed attitude of the father represented a failure by him to put the child’s interests above his own. Similarly, his Honour concluded, referring to the father’s conversations with the child in which he offered blandishments to her to encourage her to live in Dubai, such as buying her a pony and the like, and in which he encouraged her to come to Dubai saying it was as easy as getting on a plane, were not “emotionally positive” for the child, from which we infer his Honour to mean that the father was not supportive of the child in her present living arrangements (at [55]).
Further, his Honour concluded that the father, not having accepted the terms on which the mother separated from him, and given his evidence that he expected the child to come to resent the mother and her decision to leave the UAE, “has not demonstrated … any intention or any actual capacity to do anything other than to foster and encourage such resentment as the child grows in age and maturity” (at [55]).
Finally his Honour concluded that with the father’s threats to the mother in both words and actions that he would “use his wealth and his determination, to the full extent available to him to achieve what he considers is right,” his Honour was satisfied that “he is doing that without any obvious or apparent regard for the impact of his determination and decisions on the mother and her emotional and financial wellbeing and the consequential impact or potential impact on the child” (at [56]).
The primary judge found that the father “puts his negative feelings about the mother ahead of more balanced (sic) consideration of his child’s needs” (at [61]).
Turning then to whether there was a need to protect the child from harm, his Honour repeated, with apparent acceptance, the opinion of the report writer that there was no evidence that the father had been abusive to the child (at [62]).
His Honour however, identified a need to protect the child from emotional harm that she might suffer if she were removed by the father from Australia to the UAE and never returned to her mother’s care (at [63]).
It is on the identification of this risk of harm to the child that the appeal is focussed.
The primary judge concluded that but for the emotional harm that might befall the child were she to be unilaterally removed from Australia to the UAE by the father, there was no other matter that would require the child’s time spent with the father to be supervised.
His Honour considered two aspects of the asserted need for supervised time, first the risk to the child of unilateral removal to a country from which, save for the father’s consent, she would not be returned to the mother and secondly, the effect of indefinite supervision on the maintenance of a meaningful relationship with the father.
The mother contended that if given the opportunity to spend time with the child alone, the father will remove her from Australia and take her to Dubai beyond the reach of any order for the child’s return.
Turning then to the matters on which the mother relied to establish the risk of the father removing the child from Australia, his Honour set them out as follows (at [109]):
·Before the first hearing of parenting issues in 2013, the father had made threats to the mother that he would remove the child to Dubai and when there invoke Sharia law and prevent the mother from entering the UAE;
·In his divorce proceedings instituted in Dubai in 2014, the father stated that he intended to bring the child to Dubai to be brought up so as to “save her from what she might face”, and told the Court there that the mother had “kidnapped” the child;
·The father had threatened to “destroy” the mother both financially and emotionally and he appeared to be carrying out those threats;
·The father has, in the past, obtained passports for the child without the knowledge or consent of the mother;
·The father has enticed the child to come to Dubai; and
·The father is a person of substantial wealth and the mother asserted, significant influence in Dubai.
His Honour accepted that the mother’s fear was genuinely held and he concluded that she was then experiencing emotional difficulties as a direct result of the stress of the proceedings and her expressed fear (at [75]). The evidence of the family report writer was to the effect that the mother’s emotional difficulties present some likelihood that it would affect her ability to engage with the child and to foster the child’s development.
His Honour then turned to the assessment of the risk of the father removing the child from Australia to the UAE.
His Honour observed that the father had not breached the orders for supervision, nor had he attempted to remove the child on any occasion on which he had spent time with the child, and nor did he attempt to remove the child on an occasion in the October/November 2013 period when he spent time with the child without supervision. His Honour further noted that the father had not attempted to seek any orders about the child in Dubai, and that the father acknowledged that “removing the child from Australia and taking her to Dubai would cause ‘great disruption’ and ‘great resentment’ and such acknowledgement is one of the reasons he would not do this to the little girl he loves” (at [108](5)).
However, his Honour did not accept the father as a witness on whose evidence he could safely rely. After discussing the circumstances relating to the father’s proceedings for divorce and property orders brought in the Dubai Court, his Honour concluded that the father’s evidence could not be relied on as being entirely honest and truthful (at [135]). The primary judge went further and considered that evidence given by the father in which he denied telling the child that the mother was a liar only to be confronted with recordings and transcripts of the conversation further satisfied him that the father’s evidence was not entirely honest or truthful. His Honour said:
137. … Presented with that irrefutable evidence, the father conceded he had told the child that and explained his denial by a simple assertion that he was mistaken. I am satisfied that his denial was not a product of mistake but rather was a deliberate falsehood, later proven to be so.
Thus his Honour’s consideration of the father’s evidence and assertions must be seen through the prism of that unchallenged conclusion.
On that basis his Honour said:
110. I am certainly satisfied that the father has the financial means to access an airplane or a seaworthy vessel which he could use to remove the child from the Australian jurisdiction so as to get her to another country where she could more readily be removed to the UAE. As I have already observed, a shortage of money does not appear to be a problem the father experiences.
111. I am also satisfied that the father has obtained, in the past, a number of passports from the Government of the UAE for the child, without the mother’s knowledge or consent, with the child’s name appearing in various different forms in the various passports. I am satisfied that the father is a man of wealth, connection and influence, even within Government, in the UAE.
112. The evidence satisfies me that the father had certainly threatened to remove the child from Australia before the 2013 trial, and to rely upon the laws of the UAE to obtain and retain ‘custody’ of her and to ban the mother from the UAE. I am also satisfied that the father’s preference is clearly for the child to live with him in the UAE as opposed to living here in Australia with the mother. All of the evidence in the case persuades me that the father’s asserted acknowledgment that taking the child back to Dubai would cause “great disruption” and “great resentment” would not, in itself, sufficiently motivate him not to attempt to bring about such an outcome. Such asserted acknowledgement did not stop him from telling the child that she could just get on a plane and fly to Dubai when he was talking to her or from talking to her about the pony he was getting for her in Dubai, or had already obtained for her there.
113. I am entirely satisfied that the father does not have the necessary respect for the mother’s feelings, or her emotional and financial wellbeing, such that would stop him from acting to get the child out of Australia and back to the UAE if he possibly could.
The primary judge then concluded:
140. Nevertheless, after considering all of the evidence, I have reached the conclusion that there is indeed a real risk that the father would, if he has unsupervised time with the child anywhere within Australia, remove or attempt to remove the child from the country without the mother’s knowledge and consent and that, in all the circumstances, the level of risk is high and completely unacceptable in terms of the child’s best interests. It is, I consider, unacceptable because of the consequences to the emotional wellbeing of the child if she was removed from Australia and returned to Dubai. I am satisfied that the mother will not return to the UAE whether the child is living there or not. The UAE is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. I am satisfied that a removal of the child to the UAE would, therefore, deprive the child of an ongoing relationship with her mother. …
His Honour further found that the unacceptable risk identified would persist even as the child matures and that increasing maturity would not significantly reduce the risk of her being removed from Australia without her mother’s consent or knowledge. Thus the orders were made until her 18th birthday.
The Appeal
Although a number of grounds were advanced in the Amended Notice of Appeal, the focus of the appeal devolved to the basis for concluding that the father would remove the child from Australia and the primary judge’s assessment of that risk.
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in
M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
151. …Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
It is against this well accepted legal framework that we turn to consider the arguments advanced on appeal.
It was uncontroversial that the only basis on which the primary judge ordered the father’s time with the child to be supervised was the risk that he would remove the child from Australia and return with her to the UAE. It was not, nor in our view could it have been, controversial that the UAE is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction 1980 and were the child to be removed to that country against the mother’s wishes and/or against any order of the Court, save for the father’s consent, she would be beyond the reach of any order for her return to Australia.
Thus the consequences of the materialisation of the identified risk were most serious.
His Honour’s unchallenged finding was that if the child was removed from her mother’s care it would deprive the child of an ongoing relationship with her mother, and his Honour clearly did not accept that the father’s evidence that to remove the child from Australia to Dubai would cause “great disruption” and “great resentment” would be a sufficient basis on which to conclude that there was no risk (at [112]).
It was contended on appeal that the assessment of risk must be arrived at by reference to the facts and circumstances established by the evidence before the primary judge and cannot be based on speculation which is, it was argued, what the primary judge did in this case.
It was argued that in circumstances where there was no evidence that the father was minded to remove the child in breach of orders, nor had he acted in breach of orders, there was no factual basis on which the primary judge could have come to the conclusion that there was a risk the father would remove the child in breach of orders. Further, and by way of example of his Honour relying on speculation rather than evidence, counsel for the father pointed to the primary judge’s findings in which the primary judge accepted that the father had the financial means to “access an airplane or seaworthy vessel” in order to remove the child from Australia (at [110]). Not only was there no cross-examination of the father on this point during the hearing, there was no evidence, apart from the father’s apparent wealth, that he could make those arrangements. We agree that so far as this aspect of his Honour’s reasoning is concerned, it was unsupported by the evidence.
However, the assessment of the risk of an event occurring is a conclusion reached by reference to the facts and circumstances established by the evidence. Even excluding from the consideration the recourse to seaworthy vessels and the like, we are of the view that there was considerable evidence on which his Honour could properly conclude the existence of an unacceptable risk. That evidence is set out in his Honour’s reasons extracted above, however in summary form, it is as follows:
·The father threatened to take the child to Dubai and when there invoke Sharia law to retain custody of her and have the mother barred from entering the country;
·The father wants the child to live in Dubai and in his divorce proceedings in Dubai told the Court that the child had been “kidnapped” by the mother and he wanted the child to live in Dubai to “save her” from what she might face if she lived with the mother in Australia (at [109]);
·The father has obtained Emirati passports for the child in different variations of her name without the knowledge or consent of the mother;
·The father has offered the child inducements to come to Dubai and suggested to her that it is as easy as getting on a plane; and
·The primary judge while noting the father’s acknowledgment that to remove the child to Dubai away from the mother would be disruptive and distressing, his Honour found the father to be a witness whose evidence could not be relied on and further concluded that his antipathy and desire to achieve what he wanted would not prevent him from removing the child.
The father argued that none of these facts would enable the primary judge to conclude the existence of the risk, and there was no proper basis on which the primary judge could conclude that there was a risk that the father would act unlawfully in the future. It was contended that while the father had certainly expressed a preference for the child to live with him, a preference expressed in perhaps a threatening way, after the making of the orders in 2013 the father had neither said nor done anything which would found a conclusion that he intended to unlawfully remove the child from Australia. Similarly, it was argued that the obtaining of the passports was done entirely in accordance with the law of Dubai and even the invocation of Sharia law if the child was in Dubai, is consistent with the law of the country.
This was especially so, it was contended where it was not suggested to the father that he would abduct the child in face of orders that the child live in Australia. The father said “I made it clear to Kent J that whatever the court in Australia decides I will abide by it” (Transcript 1 August 2017, p.201 lines 20-21). However, to repeat, his Honour was unpersuaded that he could rely on the father’s evidence (at [135]). Thus, while the father asserted he did not intend to abduct the child from Australia, his Honour clearly did not accept that, as he was entitled given his credit finding.
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
The conclusion of risk and its magnitude was quintessentially a matter for the exercise of his Honour’s discretion and the bar to appellate intervention where that is the case is set high indeed (House v The King (1936) 55 CLR 499 at 504-505; Gronow v Gronow (1979) 144 CLR 513 at 519-520 per Stephen J). In our view, his Honour’s conclusion about the existence of the risk and its magnitude was well open to him on the evidence.
It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider crafting orders which might avoid permanent supervision (see Slater v Light (2013) 48 Fam LR 573 at 583-584; Champness & Hanson (2009) FLC 93-407 at [209], [215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at 79,780).
Circumstances may however arise in which the only appropriate response to the identified risk is to make an order, in effect, for indefinite supervision of a child’s time, if it is in the best interests of the child. Here, that is the conclusion to which the primary judge came.
In considering the appropriate response to the identified risk, his Honour considered supervision of the child’s time with the father was a necessary measure to guard against that risk and it should remain thus until she is 18. The primary judge was conscious of the tension between the need to guard against the materialisation of the risk by long term supervision and the potential for inhibition of the relationship between the father and the child because of it. His Honour concluded that whether or not the child’s relationship with the father remains valuable or positive if time continues to be supervised, will depend on the emotional connection between the two of them (at [70]).
We find no error in his Honour’s conclusion, and the appeal will be dismissed.
Costs
At the conclusion of the appeal hearing and on the basis that notwithstanding the mother appeared without representation on the appeal, she had incurred legal fees in preparing for the appeal, we directed that she file costs submissions within 14 days of the appeal hearing.
In apparent compliance with that direction, the Court received copies of three invoices for legal fees each for different figures. No submission or letter accompanied the invoices. Two of the invoices bear the same date, 30 April 2019, and the third is dated 17 April 2019. Of the two dated 30 April 2019, one refers to Appeal Number 101 of 2018 being the appeal from the orders of Forrest J, however it refers to work done in relation to the appeal from the orders of Hogan J in Appeal Number 89 of 2018. Finally, and adding to the general confusion the third invoice for fees which is dated 17 April 2019 is un-itemised and apparently relates to work done by the mother’s solicitors on both appeals.
We propose to consider the invoice dated 30 April 2019 which is said to relate to work done on appeal 101 of 2018, the instant appeal. The amount claimed is $6,984 plus GST of $698 totaling $7,682. It is not apparently in accordance with the scale of fees prescribed in Schedule 3 of the Family Law Rules 2004 (Cth), nor is it apparently calculated on a party and party basis which is in conformity with the usual approach, and no submission at all was made about the costs charged not least a submission as to why there ought to be an order made for costs to be paid on a solicitor and client basis.
Nonetheless, it is tolerably clear that the mother has incurred some legal fees in preparation of this appeal and we propose to make an order that the father pay costs of and incidental to the appeal in the sum of $3,000.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 5 November 2019.
Associate:
Date: 5 November 2019
39
10
2