Bant & Clayton
[2015] FamCAFC 222
•25 November 2015
FAMILY COURT OF AUSTRALIA
| BANT & CLAYTON | [2015] FamCAFC 222 |
| FAMILY LAW – APPEAL – CHILDREN – Where the trial judge did not err in treating the risk of psychological harm to the child if removed from the mother as a risk of family violence pursuant to the Family Law Act 1975 (Cth), s 60CC(2)(b) – Where the rejection of the reliability of the father’s evidence was a proper basis for finding that there was an unacceptable risk that if permitted to take the child out of Australia the father would seek to impose the law of his country of origin and that there was an unacceptable risk that the father would remove the child from Australia and retain her in a foreign jurisdiction contrary to the orders of the court – Where the path to the trial judge finding unacceptable risk and that the father would do what the trial judge was concerned about was readily apparent – Where the finding of unacceptable risk was plainly open due to the trial judge’s rejection of the father’s evidence and the finding that the father was an unreliable witness – Where the trial judge’s findings regarding the application of foreign law were limited to considerations regarding the best interests of the child – Where the rejection of the father’s corroborative witness and the acceptance of the evidence of the mother and her witness plainly discredited the evidence of the father – Where there was sufficient evidence for the trial judge to conclude that the father was not a reliable witness on disputed issues of fact – Where the trial judge was entitled to refer to relevant historical facts in the proceedings – Where the trial judge erred in failing to provide adequate reasons as to why the father’s time with the child should be supervised – Where the trial judge erred in failing to provide adequate reasons as to why the father’s time with the child should be restricted – Where there was no basis to conclude apprehended or actual bias by the trial judge – Where the appeal is allowed in part – Where the matter is to be remitted on the issue of time spent between the father and child. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father sought leave to adduce further evidence – Where the father’s failure to seek to reopen the proceedings prior to the delivery of judgment was fatal to his application – Where the evidence was controversial – Where the evidence did not demonstrate error by the trial judge - Where the evidence would not have altered the trial judge’s findings – Where the evidence did not go to a crucial issue – Where, due to the result of the appeal, it was unnecessary to receive the evidence – Application dismissed – Where the mother sought leave to adduce further evidence – Where the appeal was allowed in part – Where the evidence did not go to the issues raised in the successful grounds – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the parties are to file and serve written submissions as to the question of costs. |
| Evidence Act 1995 (Cth) – ss 174 and 175 Family Law Act 1975 (Cth) – ss 4AB, 60CC |
| Bennett and Bennett (1991) FLC 92-191 |
| APPELLANT: | Mr Bant |
| RESPONDENT: | Ms Clayton |
| FILE NUMBER: | LEC | 310 | of | 2013 |
| APPEAL NUMBER: | NA | 12 | of | 2014 |
| DATE DELIVERED: | 25 November 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Tree JJ |
| HEARING DATE: | 4 December 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 November 2013 |
| LOWER COURT MNC: | [2013] FamCA 898 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Richardson SC with Mr Williams |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC with Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | GJ Legal Solicitors |
Orders
The application in an appeal filed by the appellant father on 12 September 2014 be dismissed.
The application in an appeal filed by the respondent mother on 6 November 2014 be dismissed.
The appeal be allowed in part.
Orders 10, 11, 12 and 13 be set aside as on and from the date of the commencement of the rehearing before the new trial judge.
The proceedings be remitted to the Family Court of Australia for rehearing by a judge other than Kent J with such rehearing limited to consideration of the time the child is to spend with the appellant father, and the conditions of the same, including whether that time is to be supervised or not.
Within 28 days of the date hereof the appellant father file and serve written submissions as to costs in relation to the following:
(a) The costs of the appeal.
(b)The costs of the application in an appeal filed by the appellant father on 7 March 2014.
(c)The costs of the discontinued application in an appeal filed by the respondent mother on 3 October 2014.
Within 14 days of receipt of the submissions of the appellant father the respondent mother file and serve written submissions in response.
Within 14 days of receipt of the submissions in response of the respondent mother the appellant father file and serve written submissions in reply, if any.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 12 of 2014
File Number: LEC 310 of 2013
| Mr Bant |
Appellant
And
| Ms Clayton |
Respondent
REASONS FOR JUDGMENT
May & Strickland JJ
Introduction
By Amended Notice of Appeal filed on 28 July 2014, Mr Bant (“the father”) appeals against parenting orders made by Kent J on 19 November 2013 in relation to the child Y, born in 2009 (“the child”). The appeal is opposed by Ms Clayton (“the mother”).
In summary, the orders provided, inter alia, for the parents to have equal shared parental responsibility for the child in respect of all major issues, save that the mother have sole parental responsibility for the location of the residence and the travel of the child; for the parents to consult one another about decisions regarding the major long term issues of the child; for the child to live with the mother and communicate with the father; for the child to spend face-to-face supervised time with the father; for the facilitation of communication between the parties; for the parents to be responsible for the child’s day to day care, welfare and development when in their respective care; for the father to provide the child with education on her Muslim faith and Emirati culture; for the father to be restrained from removing the child from the mother’s possession or outside of the Commonwealth of Australia; and, for the child to be placed on the All Ports Watch Alert System for a period of three years.
On 7 March 2014, the father filed an application in an appeal seeking an extension of time to file a Notice of Appeal. The extension of time was granted by May J, who delivered reasons for judgment on 23 June 2014. The costs of this application were reserved to this court upon determination of the substantive appeal.
On 12 September 2014, the father filed an application in an appeal and supporting affidavit seeking to adduce further evidence.
On 3 October 2014, the mother filed an application in an appeal seeking to adjourn the appeal until the property settlement had been determined. This application was filed with two supporting affidavits. The mother filed a notice of discontinuance of this application on 13 October 2014. The costs of the discontinued application were reserved to this Full Court by consent order dated 10 November 2014.
On 6 November 2014, the mother filed an application in an appeal and supporting affidavit seeking leave to adduce further evidence. A further affidavit in support of this application was filed on 21 November 2014.
On 3 December 2014, the father filed an affidavit in response to the mother’s affidavits of 6 and 21 November 2014.
Background
The father was born in 1973 and was aged 40 years at trial. The father is a national of the UAE and adheres to the Muslim faith. Particularly, the father identifies with his Arab culture as an Emirati.
The father is a man of significant wealth. He is a director and part owner of family companies in Dubai, known as the Bant Group. At first instance it was conceded by the father’s counsel that the court could proceed on the understanding that there was no real issue about the father’s capacity to finance any parenting or time and communication arrangements that the court might determine.
The mother was born in 1977 and was aged 36 years at trial. The mother was born in Australia and is an Australian citizen. Despite converting to Islam when she married the father in Dubai, the mother is not a practicing Muslim and does not adhere to that religion. Rather, the mother describes herself as a woman of western culture, specifically as an Australian. The mother holds substantial real property in Australia in her name and there is evidence that she holds cash reserves in her name of several hundred thousand dollars.
There is one child of the relationship, referred to above, and who was aged four years at trial. The child was born in Australia and holds Australian citizenship and also UAE nationality.
The father has another child from his first marriage to Ms G, to whom the father was married from about 1996 to about 2005. Their child, the father’s daughter R (“R”), was born in 1998 and was aged almost 15 years at trial. R lives primarily with her mother in Dubai and has historically spent time with the parties on visits to their home in Dubai and also on their international travels, including to Australia.
In about 2001, the mother began living in the UAE due to her employment.
In about 2006, the mother met the father.
The parties married in 2007 in Dubai.
Throughout their relationship, and from the time of the child’s birth, the parties resided in Dubai but also spent significant time in Australia. From the time of her birth until trial, the child had spent about the same amount of time in Australia as she had in Dubai.
In June 2013, the parties travelled to Australia with the child, and with R, the father’s mother and sister, and domestic employees of the father. Return flights had been booked for 2 September 2013.
In July 2013, the mother instituted these proceedings in the Federal Circuit Court in Lismore.
In or about July 2013, the mother obtained, on an ex parte basis, an apprehended domestic violence order in the B Magistrates Court which listed the child as a protected person. On the same day, the parties separated and the mother caused the child’s name to be placed on the Airport Watch list.
Since this date the mother and the child have lived in a property at U. As for the father, he and his family commenced occupation of his Surfer’s Paradise unit. Upon the departure of his family members, the father has either remained in Australia in the B area or has returned briefly to Dubai from time to time to fulfil visa requirements and to attend to his business.
In August 2013, Judge Turner of the Federal Circuit Court at Lismore transferred the proceedings to the Family Court of Australia at Brisbane with a request for an urgent hearing.
Until the first day of trial, and including at the interim hearing before the trial judge in August 2013, the father maintained the position that the court ought to make a return order on a summary basis and for parenting proceedings to be resolved by the courts in Dubai.
The reasons for judgment delivered on 19 November 2013
The trial judge commenced his comprehensive and careful reasons for judgment by providing a brief background of the parties and an extensive history of the proceedings. Relevantly, his Honour noted that at the outset of the trial the father had abandoned his contentions that the mother’s proceedings were vexatious or an abuse of process and had also abandoned any pursuit of a summary order for the child’s return to the UAE (at [34]).
Having discussed the proposed orders and submissions of each party, his Honour turned to Pt VII of the Family Law Act 1975 (Cth) (“the Act”). His Honour noted that the “operation of the statutory framework and the manner in which the Court approaches its application including the determination of s 60CC ‘best interests’ considerations, is well-settled by authority (see, for example, Goode & Goode (2006) FLC 93-286; MRR v GR (2010) 240 CLR 461; Sayer & Radcliffe and Anor (2013) 48 Fam LR 298; and Cox & Pedrana (2013) FLC 93-537)” (at [63]). His Honour went on to record that in light of the “substantial amendments” to Pt VII in 2006, “it is to be recognised that s 60CC(2A) now requires greater weight to be given to the second of the two primary considerations” (at [64]).
His Honour then began to consider the operation and application of the law of the UAE as it related to the proceedings. Relevantly, the mother asserted that if the father were permitted to spend unsupervised time with the child he would attempt to remove her to the UAE and would then seek to invoke Sharia law, pursuant to which the mother claimed that she would never see the child again. Further, the mother claimed that she would not return to the UAE due to her fear of persecution. In response, the father submitted that if the mother returned to the UAE he would enter a formalised agreement with her which would be directed to addressing any perceived risk the mother held about the child and her returning to the UAE. As a result, his Honour considered it was “necessary to resolve, to the extent necessary, the relevant law of the UAE” (at [66]).
His Honour began by noting that “foreign law is a question of fact, not of law, to be determined on the evidence”, and thus, pursuant to s 174 and s 175 of the Evidence Act 1995 (Cth) (“the Evidence Act”), “the Court may have regard to relevant statutes or law reports of foreign countries in determining such questions” (at [67]). In this regard, his Honour noted the assistance of the English translations of the statute law applicable in the UAE, and the written and oral expert evidence provided by each of Ms MB and Mr IE (at [68]).
His Honour found that both experts had “…‘specialised knowledge based on the person’s training, study or experience’ within the meaning of each of s 13(8) and s 79 of the [the Evidence Act]”, but found overall, that Mr [IE] had “considerably longer and significantly wider breadth of experience than Ms [MB]”, and presented his evidence with greater persuasion “where there were any points of difference between the two experts” (at [72]).
Thus, his Honour accepted, significantly, the opinion of Mr IE that (at [75]):
m)… if the child was returned to the UAE there is every likelihood that, if the father was absolutely determined to prevent the mother from being involved with the child, then he could use the local UAE law so that the mother would be unable to obtain the return of the child to Australia and there is a strong possibility that she may even be prevented from seeing her child again.
Regarding the father’s proposal for a registered agreement between the parties, his Honour discussed the case authorities provided by Ms MB who “readily acknowledged that in the context of consensual agreements she was unable to point to a body of jurisprudence in Dubai where this had been tested” (at [82]). His Honour also noted the “significant reservations” Mr IE had expressed in relation to the “binding effect of such agreements” (at [83]). Having accepted the opinion of Mr IE in this respect, his Honour concluded that (at [87]):
…even if the parties entered into a written agreement along the lines proposed by the Father containing his irrevocably expressed consent to the Mother re-marrying; and regulating matters of what may be conveniently described as parenting arrangements; and even if a local court in Dubai made an order to give effect to such agreement; there can be no certainty that the Father could not, if he chose, defeat the effect of such an agreement/order.
In light of this conclusion, his Honour opined that he could not be satisfied “that the relevant risks identified in the Mother’s case [could] be eliminated by the making of an agreement “registered” with a court in Dubai, or given effect to by an order of a Dubai court” (at [88]).
His Honour then turned to his findings in relation to the credit of the parties and opined that, because the “respective versions of the parents [were] so divergent on fundamental issues of fact of central importance to the findings to be made in determining [the child’s] best interests, the credibility of each parent [fell] to be considered” (at [89]). Further, due to his Honour’s finding that the evidence of the parties was “diametrically opposed”, his Honour considered that “the acceptance of the version of one party on an important issue of fact may have consequences for the credibility of the other party overall” (at [90]).
Regarding the credibility of the father, the trial judge examined a number of circumstances where the father had corrected or withdrawn his earlier evidence once he became aware that the body of evidence was clearly against him. This was particularly analysed in the context of the discussion between the parties about relocating to Australia, the evidence regarding the events of March 2012, the subsequent conversation regarding this event in March 2012, and the “signed agreement” of the parties. In light of this evidence, his Honour found that the father’s credibility was “in doubt” (at [102]).
Further, in relation to the father’s threats to remove the child to the UAE his Honour recorded that the father had denied these statements, but that such statements were confirmed by the mother’s recording of the parties’ conversation in March 2012. The father’s outright denial of these threats led his Honour to conclude that “the Father [was] not a reliable witness on disputed areas of fact” (at [128]).
The final issue with the father’s credibility arose in the context of the counselling session undertaken by the parties with Mr V, the family report writer, on 5 July 2013. Mr V was a subpoenaed witness of the mother. Importantly, his Honour noted that Mr V was not a “family counsellor” within the meaning of s 10C of the Act, nor was he a “family dispute resolution practitioner” within the meaning of s 10G of the Act, and therefore, the provisions regarding confidential communications did not apply to him (at [131]).
The relevance of Mr V’s evidence was in relation to the father’s admission, during the counselling session, about his physical disciplining of the child, as from the parties’ USA holiday in April 2013. It was accepted by his Honour though that part of the mother’s motivation in seeking the counselling with Mr V was to “collect or gather evidence” or to “record admissions” (at [135]).
Having considered the audio provided by Mr V, his Honour found:
139.Whilst I am satisfied that in the counselling session the Father initially denied tying [the child] up, I am comfortably satisfied that he later made clear admissions to this effect. After the audio of the relevant part containing the admissions had been played to Mr [V] he was cross-examined by Mr Bartfeld and it was put to him that the audio reflected the Father expressing “I tied her up, I tied her up” in a manner of incredulity or in a state of disbelief that the allegation was being made against him. It was put, in effect, that the Father’s words were expressed in some state of shock or surprise or disbelief about the allegation being made rather than constituting an admission. Mr [V] rejected that interpretation, as do I.
140.Having heard the audio in Court and re-playing it several times in considering the matter I am comfortably satisfied that the Father indeed made an admission to this effect and his words are not explained as some statement of surprise, incredulity or shock at the accusation being levelled at him. I am fortified in this conclusion by having seen and heard the Mother give her evidence and undergo the careful and appropriately forceful cross-examination of Mr Bartfeld.
His Honour then detailed the cross-examination of the father on his physical disciplining of the child and stated:
143.The difficulty in accepting the Father’s version is that as compared to his acknowledgement in cross-examination as to [the child’s] response to the one pinch he alleged and the fact that this was not successful the Father clearly told Mr [V], as is recorded, that he had found this method (i.e. pinching) “very effective”.
Significantly, his Honour found that “the recorded statement of the Father [appeared] to be inconsistent with the proposition that he pinched [the child] on only one occasion” (at [145]).
Therefore, his Honour found that the statements the father made to Mr V were “inconsistent with the proposition that there was only ever one incident of his pinching [the child]” (at [147]).
Next, his Honour considered the evidence of Ms G. It was the mother’s case that both the father and Ms G had made statements to her to the effect that, during their marriage, there had been an “episode of physical violence between the Father and [Ms G] said to be attributed to the fact that [Ms G] had an affair”. The mother’s evidence on this issue was not led to suggest the father had ever been physically violent to her, but for the purpose of demonstrating that he was “prone to angry outbursts”, a fact accepted by his Honour (at [182]). The mother’s assertions were denied by both Ms G and the father.
On this issue, his Honour analysed the evidence of Ms G, the mother and the mother’s close friend, Ms S. Part of the evidence provided was a series of text messages which had been produced by both the mother and Ms G. Many of these messages were held by his Honour to “provide corroboration of the Mother’s version” (at [154]). Significantly, his Honour noted that Ms G at no time attempted to challenge the accuracy of the information contained in the messages and, when cross-examined on the content of the messages, was found to be “lacking in credit”. An example of this was the mother’s allegation that Ms G had shown her a drawing made by the police department which demonstrated the areas of bruising on Ms G’s body after the alleged assault. Ms S, whom his Honour found to be a careful witness, confirmed that she was present at the mother’s house when this drawing was shown to the mother through Skype (at [177]). The accuracy of the evidence provided by the mother and Ms S was not challenged by Ms G.
Therefore, at [180] his Honour found that Ms G was “not a witness of credit” and that he preferred “the evidence of each of the Mother and Ms [S] wherever their respective accounts diverge”.
Significantly, based on his Honour’s findings in relation to Ms G, his Honour concluded (at [183]):
Obviously, it follows from my rejection of [Ms G] as a witness of credit; and my acceptance of the Mother’s evidence on this aspect as well as that of Ms [S]; that the Father’s credit is damaged by this body of evidence.
His Honour then turned to the credit of the mother. His Honour explained that he was in “no doubt as to the genuineness of the Mother’s expressed fears about returning to Dubai” and accepted the evidence of the mother that “the Father [had] historically made a variety of threats including to the effect of removing [the child] from the Mother’s care and returning her to Dubai” (at [186] – [187]).
His Honour found that the mother was a genuine witness in relation to the benefit of the child experiencing her Arabic culture and also regarding her fears about the child being removed to Dubai and being retained there. Thus, at [189] his Honour opined that he “did not perceive areas or reasons to question the Mother’s reliability as a witness”. In light of this finding, his Honour accepted the mother’s evidence about her fear of the father, resulting from the threats made to her by the father in March 2012 (at [192]).
The trial judge noted that the mother’s credibility “fell to be scrutinised” in relation to correspondence immediately post-separation where the mother, through her solicitor, proposed to enter an agreement with the father which would have enabled him to spend time with the child during the day for up to three times a week, as long as the father undertook not to physically discipline the child or remove the child from Australia. His Honour considered that this correspondence was inconsistent with the mother’s fear that the father was a “flight risk” (at [194]), but his Honour did not find that this evidence supported a finding that the mother’s allegations regarding the father’s physical disciplining were “invented or overstated” (at [200]).
Thus, in relation to the credit of the mother his Honour concluded:
201.Overall, I found the Mother to be, albeit anxious and highly strung, a witness of credit. I assess that the Mother’s evidence is reliable to the extent that her evidence is to be preferred to that of the Father or his witnesses wherever there are disputed issues of fact.
202.It follows that I accept what the Mother has to say about relevant conduct of the Father during the relationship particularly concerning the threats he has historically made as she contends and as to the events surrounding the Father’s inappropriate physical disciplining of [the child].
Finally, his Honour considered the evidence of the maternal grandmother. His Honour explained that there was an attempt by the father “to portray the [maternal grandmother] as having fuelled the Mother’s fears or having influenced the Mother’s attitudes generally in a negative way towards the Father” (at [203]). His Honour rejected this contention and was satisfied that the maternal grandmother gave “thoughtful and considered evidence concerning her role of support of the Mother rather than directing the Mother’s conduct or influencing her views” (at [204]).
Therefore, in concluding his assessment of credit, his Honour found (at [206]):
In summary, I prefer the Mother’s evidence to that of the Father on those disputed issues of fact central to the issues agitated in these proceedings.
His Honour then turned to the primary and additional considerations in s 60CC of the Act relevant to this matter, and noted at the outset that “it would not be legitimate to elevate any capacity of the Mother to return to live in the UAE as either a realistic prospect or as part of a ‘proposal’ in terms of determining best interests considerations” (at [207]). His Honour further noted that it was not possible for the father to relocate to Australia in the “immediate future” (at [209]). However, his Honour found (at [210]):
…the same restraints as might apply with the Mother visiting Dubai do not apply with the Father in the sense of him visiting Australia for extended periods. Historically he has done so for several months each year and in his affidavit for trial deposes to plans the parties had prior to separation that he would spend four months of each year in Australia.
His Honour considered that the question which arose was “whether the circumstances of this case are such as to dictate focus or emphasis upon the shorter term or longer term prospects in assessing [the child’s] best interests”, and noted that the shorter term would obviously provide a greater scope for subsequent review of the parenting orders (at [213]). His Honour found that there were “a number of considerations pointing to [the child’s] best interests being served by emphasis upon a shorter term view of the best interest considerations and parenting orders” (at [214]).
His Honour then focussed on the primary considerations pursuant to s 60CC(2) of the Act. First, his Honour noted that, despite the assertions of the mother, the child “[enjoyed] and [benefitted] from a meaningful relationship with both of her parents” and had “much to gain in terms of benefit from having and maintaining a meaningful relationship with both of her parents into the future” (at [215] – [216]). Particularly, his Honour found that both parents presented as intelligent people, “committed to [the child’s] care, welfare and development” and that both parents had conceded that the other was, on the whole, a fantastic parent (at [216] – [218]). Further, his Honour found that he was “left in no doubt on the Mother’s evidence that she [placed] importance upon what the Father offers [the child] in terms of his Arabic language, customs, traditions and in terms of his Muslim faith” (at [219]).
In relation to s 60CC(2)(b), his Honour referred to his acceptance of the mother’s evidence in relation to the father’s inappropriate disciplining of the child. Despite this, his Honour was “satisfied that the Father [could] and [would] modify his behaviour in the relevant respects” and would comply with any relevant undertakings which restricted the parents from resorting to physical forms of punishment of the child in the future (at [220] and [223]).
Though his Honour was convinced that there was no risk in relation to the disciplining of the child, his Honour considered that there was a risk that the father would remove the child to the UAE and invoke Sharia law (at [224]). His Honour accepted the submissions of the father that the law to be applied when determining whether there was an unacceptable risk was as summarised by Murphy J in Donaghey & Donaghey [2011] FamCA 13 (relying on the decision of the High Court in M v M (1988) 166 CLR 69 and the subsequent authorities which have been discussed and applied that case) (at [225]).
In this regard, his Honour noted his earlier finding that if the father removed the child to the UAE he would have the ability to significantly limit or curtail the child’s time with the mother. His Honour opined that this would be likely to be “profoundly damaging for [the child’s] future development” (at [226]).
His Honour then addressed the “range of factors and countervailing propositions that [fell] for consideration” when examining the risks asserted by the mother (at [227] – [228]).
In conclusion, his Honour noted that his earlier findings as to the reliability of the father’s evidence meant that no significant reliance could be placed on the father’s evidence to the effect that he would comply and abide with the outcome of these proceedings (at [229]). This conclusion was supported by the fact that it was the father’s position up until trial that the case should be heard in the UAE, which preserved doubt as to the father’s attitude towards the proceedings and the father’s position regarding the child’s relationship with her mother (at [230]).
Thus, at [233] – [234] his Honour discussed the short marriage between the parties, the history of disharmony between them, which his Honour considered would be likely to continue, and the father’s conviction regarding the applicability of Sharia law, and concluded that he could not be satisfied that the “potential consequences” of the applicable UAE law could be “eliminated by any proposed agreement” (at [234]).
In light of this finding, his Honour concluded as follows (at [236]):
The simple and stark reality in this case is that the laws of Australia guarantee for [the child] a meaningful relationship with both of her parents, irrespective of their gender or nationalities, subject only to “best interest” considerations as expressed in s 60CC of the Act. The laws of the UAE do not provide that same guarantee for [the child].
Particularly, his Honour accepted the opinion of Mr M, the family consultant engaged by the parties and who also provided a report, that if the child was removed from her mother in Australia it would be “extremely traumatic” for her and could compromise her development, whereas, if the child was kept in Australia with her mother, there would remain the opportunity for the child to continue a bond with the father (at [237]).
As such, in relation to the risk of the child being removed from Australia by the father, his Honour found:
238.On balance I find that there presently, and for the foreseeable future, exists an unacceptable risk to [the child] if she were permitted to return to or visit the UAE or to leave the Commonwealth of Australia with the Father that the Father may seek to impose the law of the UAE.
239.I accept the Mother’s evidence that she will not visit or return to Dubai or the UAE in future.
240.I find, by the same process of reasoning, that [the child] spending unsupervised time with the Father would presently, and for the immediately foreseeable future, pose an unacceptable risk to [the child’s] welfare represented by the risk of her being removed from Australia.
241.Expressed in the language of s 60CC(2)(b) I find that there is a need to protect [the child] from harm in this respect given the obvious psychological harm that would occur if she was either permanently removed from the Mother or there was any significant interruption of [the child’s] time with the Mother.
On the other hand, his Honour did not accept that there was an unacceptable risk in relation to the physically disciplining of the child. In this regard, his Honour recorded:
244.I am satisfied that the Father would abide an order preventing either parent from employing physical means of discipline particularly in circumstances where the Father’s time with [the child] takes place in Australia.
245.It follows that any orders for supervision or any requirement for supervision is directed only to what may be termed the “flight risk” rather than any need for the Father’s time with [the child] to be supervised to meet any risk of continuance of inappropriate forms of physical discipline.
In addressing the additional considerations in s 60CC(3) of the Act his Honour confined his discussion to the relevant s 60CC(3) factors as agitated by the parties, noting that the child was too young to proffer any view, and that the family violence proceedings and AVO had been expressly disavowed by the parties.
As to the nature of the child’s relationships, his Honour found that the mother had been “committed on a full-time basis to [the child’s] care”, a finding which was supported by counsel for the father (at [250]). Regarding the father, his Honour also accepted that there was “no doubt that the Father [had] been committed to [the child] and to her care”, despite the limitations in relation to the father’s business commitments. These business commitments, however, were found by his Honour to have led to the “inexorable conclusion” that “for significant periods the Mother [had] been [the child’s] sole carer” (at [251]). Any assertion by the father that the child’s care was undertaken “equally” was found by his Honour to be simply incorrect (at [252] – [253]). Likewise, his Honour found that any attempt by the father to “lessen the significance of the disparity as between the parents of their respective availability and capacity to provide for [the child’s] care and needs” should be rejected. This finding, his Honour said, was not “intended to diminish the Father’s active role in [the child’s] life when he [had] the capacity to participate in her care outside of his work commitments and during the periods when the family unit was together” (at [258]). In fact, his Honour acknowledged the oral evidence of the mother that the child had a loving and close relationship with the father which was of “enormous benefit” to the child and should be allowed to develop (at [259]).
Next, his Honour assessed the opinions given by Mr M, particularly in relation to the child’s culture and primary attachment figure, and concluded that the child had an attachment to both of her parents, “but that her primary attachment figure [was] the mother” (at [265]). His Honour noted, significantly, that the mother’s proposals would enable this primary attachment to continue, whereas the father’s proposals would require the child’s care to be “supplemented with the care of paternal family members … given the father’s work commitments” (at [266]).
In relation to the child’s other family members, his Honour opined that there was “nothing to suggest that [the child did] not enjoy a good relationship with her half sibling [R]”, despite the significant age difference, and that his Honour was cognisant that R had never lived with the child on a permanent basis (at [267]). His Honour also recognised the significant prospects of R undertaking tertiary education in a country other than Dubai or Australia (at [268]).
His Honour then discussed the child’s relationship with her maternal grandmother, noting that she had had a “significant role in [the child’s] life given the amount of time [the child had] spent in Australia” (at [269]). The close and loving relationship which the child was found to have with her maternal grandmother, and with her maternal uncle, was conceded by the father (at [269]).
Similarly, his Honour stated that there was “no reason to doubt that [the child had] developed bonds with each of the paternal family members” (at [270]).
Next, his Honour turned to consider s 60CC(3)(c) and (ca). His Honour noted the father’s assertion that the mother had not fulfilled her parental obligations in relation to the child due to her behaviour in limiting or excluding the father’s time with the child upon separation, and for the period immediately after separation (at [273]). However, his Honour found that the mother’s motivations in limiting the child’s time with the father were not sinister or designed to “inflict damage upon the Father or in and of itself damage upon his relationship with [the child]” (at [284). Particularly, his Honour stated that the mother’s actions had to be viewed against the contextual background and influences of the parties, including the mother’s “genuinely held” fears that the father could remove the child from Australia. Therefore, his Honour concluded as follows:
286.In all the circumstances I do not accede to the submission made to the extent that it is to be interpreted as seeking an adverse finding against the Mother.
287.In my judgment, each of the parents has, within the constraints dictated by the circumstances and countervailing factors referred to, taken the opportunity to participate in relevant decision making and to spend time and communicate with [the child].
288.There is no issue that either parent has in any way failed to fulfil parental obligations to maintain [the child].
Regarding the effect of any change in the child’s circumstances, his Honour noted that the reality of the situation was that the mother would not return to Dubai or the UAE and that the father would “not spend any more than three or four months in Australia per year” and had no plans to relocate to Australia. Thus, his Honour concluded that the “respective chosen places of residence are separated by an airport to airport flight travel time of approximately 14 hours” (at [290]). His Honour then canvassed the advantages and disadvantages of the child living with the mother, and the same in relation to the father (at [291] – [300]). Importantly, the trial judge found that he did not agree with Mr M’s concerns that the mother and the maternal grandmother would not support the child in respect of the culture and language of the father (at [295]) and indicated that he had not discerned in the mother “any position of being dismissive of the central importance of [the child’s] cultural background sourced to the Father and the paternal family” (at [296]). Though his Honour was cognisant of the mother and maternal grandmother’s disapproval of the father’s view of how a wife should behave, his Honour recorded that it would be a “quantum leap … to translate that into some overall or overriding objection by either the Mother or the maternal grandmother to [the child’s] involvement and instruction in the Muslim faith or Arabic culture” (at [298]).
Ultimately, his Honour found (at [301]):
In assessing the likely effect upon [the child] of such a change the Court does not have the extent of expert assistance it might have had given that Mr [M] did not appear to place proper focus or emphasis upon this aspect. However, in my judgment, given her age and level of development and her experience to date it can be readily inferred that interruption at this point in [the child’s] experience of, and relationship with, the Mother ought be viewed as carrying significant risks for [the child’s] healthy development.
In relation to s 60CC(3)(e), his Honour explained that, previously, Skype had been an effective method of communication. Further, his Honour noted that the parties were in a “fortunate financial position” which meant that the “expense associated with regular international travel [was] not of itself of any practical impediment” (at [305]). On the other hand, his Honour was cognisant of the father’s need to “devote himself to the business interests of the [Bant] Group”, which his Honour found would see him remain in Dubai. Despite this, his Honour recorded that the father was in the “fortunate position of taking four months out of his working year for holidays and travel” (at [306]). Though his Honour recognised the expense and practical difficulty of undertaking a 14 hour flight, his Honour noted that the father had historically “enjoyed spending time in Australia” (at [307]).
In relation to parental capacity, his Honour found that the mother’s capacity to provide for the needs of the child was superior to the father’s because the mother intended to devote herself to the child on a full time basis whereas the father had to continue to operate the family business (at [308]). This finding also came “against the background of the Mother’s primary care role to date” (at [308]). Though his Honour recognised the father’s intention to employ a nanny in the event that the child lived with him, he also recognised the concession of the father, and observation of Mr M, that the mother was a good mother who was committed to the child and who had the support of the maternal grandmother. Therefore, his Honour found that the mother’s “central focus [had] been [the child’s] care whilst the Father [had] had the demands of his work and business commitment and [would] have such demands for the foreseeable future” (at [313]). The financial capacity of the parents was not an issue (at [314]).
His Honour then turned to s 60CC(3)(g). Particularly, his Honour noted that the child had spent as much time in Australia as she had in Dubai and that her primary language was English, only having a rudimentary knowledge of Arabic. Though his Honour understood that the child would not receive instruction in the Muslim faith until she was aged five years, his Honour was satisfied that the mother would foster the ongoing development of [the child’s] Islamic faith (at [321]). However, his Honour found that the mother’s Australian heritage was just as important. Finally, his Honour noted that the issue should not be given “undue emphasis” based on the evidence that the father and Ms G spoke English in their household, and that his daughter R did not actively practice the Muslim faith (at [324]).
At [325], his Honour recorded that there was “no issue that both parents love [the child] and that she loves both of them”. Despite the allegations of inappropriate disciplining, his Honour found that there was no issue regarding the parent’s ability to discharge their parental obligations (at [326]).
Regarding family violence, his Honour noted that “no relevant inference could be drawn by [the] Court in relation to the domestic violence or protection orders pursued or obtained in [B area]” (at [327]). His Honour then canvassed the amendments made to the Act on 7 June 2012 in relation to family violence (at [328] – [333]), and found that his acceptance of the mother’s evidence in relation to the father’s “inappropriate physical disciplining” of the child meant that “each instance of such conduct probably [constituted] an ‘assault’ and ‘family violence’ within the meaning of the sections” (at [332]). As such, his Honour stated as follows (at [334]):
My acceptance of the Mother’s evidence means that there was “family violence” within the meaning of the section, as follows:
a)The inappropriate physical disciplining of [the child] which caused the Mother to be fearful;
b)The Mother gives evidence of numerous incidences where arguments entailed the Father becoming so angry that she was fearful and in this context the argument of … March 2012 was one;
c)The threats made by the Father, which need not be detailed seriatim, but which include threats to remove [the child], to “ban” the Mother would, given the Mother’s response to them, constitute family violence within the meaning of the section.
Finally, his Honour found that due to the child’s young age and the uncertainty about the father’s future living arrangements, the orders made may need to be revisited on the basis of changed circumstances in the future (at [335] – [338]).
In light of all the considerations, his Honour found that the balance “overwhelmingly [favoured] the conclusion that [the child’s] best interests would be best served by orders along the lines of the Mother’s proposed orders” (at [339]). His Honour noted at [344] that given his findings in relation to unacceptable risk, the mother’s orders would also address the risk to the child. Importantly, at [346] his Honour said:
On my findings, the need for supervision now does not arise from any need arising out of the issue of inappropriate physical disciplining of [the child]. The need for supervision is now only in relation to the means by which [the child’s] best interests are preserved by guarding against the “flight risk”.
His Honour then turned to the issue of parental responsibility. His Honour referred to his conclusion on family violence and found, therefore, that the presumption in s 61DA(1) did not apply (at [352]). In considering the proposal of both of the parties for equal shared parental responsibility, subject to certain limitations, his Honour examined the effect of an order pursuant to s 65DAC of the Act, and the oral evidence of Mr M on this issue. His Honour concluded that it would be in the best interests of the child for there to be an order for equal shared parental responsibility, subject to the grant of sole parental responsibility to the mother in respect of the issues of residency and travel (at [356]).
However, despite his finding that an order for equal shared parental responsibility should be made, his Honour, for the reasons expressed in his discussion of the child’s best interests, did not consider that an order for equal time would be in the child’s best interests. In fact, his Honour recognised that an order for equal time would not be reasonably practicable within the meaning of s 65DAA(5) due to the living arrangements of the parties (at [359]). Regardless, his Honour did not consider an equal time order appropriate even when the father was in Australia, based on the evidence of Mr M, his Honour’s own conclusions as to the child’s attachment to her mother, his Honour’s findings on the best interests considerations overall, and his conclusion that the father was a “flight risk” (at [364]).
As to substantial and significant time, his Honour found that when the father is in Australia, an order that the child spend substantial and significant time with him would be in the child’s best interests and reasonably practicable (at [361]).
Grounds of Appeal
In his summary of argument filed on 15 October 2014 the father abandoned Grounds 9 and 13 of the grounds of appeal provided in his Amended Notice of Appeal filed on 28 July 2014. As such, the grounds of appeal relied upon by the father at the hearing before this court were as follows:
1.That his Honour erred in principle and acted contrary to law in determining that s 60CC(2)(b) applied to the events he described in pa. 241 and thereafter the error permeated the whole of his reasoning process by not only wrongly identifying a false primary consideration but then wrongly affording those facts greater weight than the matters identified in s 60CC(2)(a).
2.That his Honour erred in principle in his consideration of “unacceptable risk” in failing to find or recognise that he had not found that there was an unacceptable risk that the appellant would seek to take the child to and retain the child in UAE contrary to order; or, would if permitted to take the child to UAE, retain her there contrary to orders of this court and would, in any event, if the child resided with him or spent time with him pursuant to orders of this court, seek to apply Sharia law contrary to orders of this court.
3.In the alternative, in the event that ground 2 is rejected then his Honour failed to give adequate reasons for any finding that the appellant was likely to act in any of the ways described in ground 2 so as to constitute unacceptable risk.
4.That his Honour erred, if his reasons are held to so imply, that in the fact finding process before him, an adverse view of the credit of the appellant, permissibly permitted him, by inference, to conclude that he would be likely to act in the ways referred to in ground 2.
5.That his Honour erred in failing to give adequate reasons by failing to make findings whether he regarded the statements that he found the appellant made in March 2012 were a genuine statement or threat as to how the appellant intended to act and failed to explain or find whether he found those statements as constituting a likelihood that he would act in the ways described in ground 2 at the time of judgment.
6.That his Honour erred in principle and discretion in taking into account, as a factor contrary to the interests of the child, his views that the rule of law in another country where the child had ordinarily resided, would operate contrary to the welfare of the child.
7.That his Honour erred in his reasoning process in the assessment of the credit of the appellant by concluding dishonest intent in his reasons at pa. 91 – 102 and further his Honour erred in principle in the process of reasoning relied upon to conclude that the rejection of [Ms G’s] evidence axiomatically damaged the appellants credit (pa. 183).
8.That his Honour erred in principle in taking into account his reasons as to “unacceptable risk” the fact that the appellant had maintained, until the commencement of the hearing, an application contending for a summary return of the child to Dubai and consequently that the proceedings would thereafter be determined in that forum and further his Honour erred in drawing any adverse inference against the appellant from those facts in relation to any issue in these proceedings at all.
…
10.In determining to make an indefinite supervision order his Honour failed to take into account the constraints that such imposes on the opportunity of the appellant and child to have a relaxed, secure and meaningful relationship and failed to give adequate reasons as to why supervision was a necessary or desirable addition to the other safeguards he had imposed.
11.That his Honour erred in failing to properly consider and determine the appellant’s applications for fortnightly time and ‘block’ periods of time and in failing to deliver sufficient or any reasons for rejecting such applications.
12.The whole of his Honour’s judgment is infected with apprehended or actual bias in that a reasonable observer of his Honour’s reasons might conclude that his Honour acted on an assumption that any Muslim father with some position of influence or responsibility in an Islamic country presented an unacceptable risk of child abduction, and that no man in the position of the Father would be treated fairly by his Honour on the basis of admissible evidence.
Orders sought
In his Amended Notice of Appeal NA 12 of 2014, the father seeks the following orders:
1.That the Appeal be allowed.
2.That the Orders made by the Honourable Justice Kent on 19 November 2013 be set aside.
3.That the matter be remitted for rehearing before a single judge of the Family Court of Australia, other than the Honourable Justice Kent.
4.That the Appellant Father be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respects (sic) of the costs incurred by him in relation to a new trial.
5.That the Appellant Father be granted a costs certificate pursuant to the provisions of s 10 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respects (sic) of the costs incurred by him in relation to the appeal.
Discussion
Ground 1
This ground challenges his Honour’s application of s 60CC(2)(b) of the Act. His Honour found that the child “spending unsupervised time with the Father would presently, and for the immediately foreseeable future, pose an unacceptable risk to [the child’s] welfare represented by the risk of her being removed from Australia” (at [240]), and then said this (at [241]):
Expressed in the language of s 60CC(2)(b) I find that there is a need to protect [the child] from harm in this respect given the obvious psychological harm that would occur if she was either permanently removed from the Mother or there was any significant interruption of [the child’s] time with the Mother.
The error is said to be that, given the words of limitation in paragraph (b), namely “the need to protect the child from … psychological harm from being subjected to, exposed to, abuse, neglect or family violence”, the harm referred to by his Honour is not caught by that paragraph. Thus, his Honour was not able to take that harm into account as a primary consideration; it could only be taken into account as an additional consideration.
However, we do not accept this submission.
It is plain that the relevant harm identified by his Honour is the harm that would be caused to the child if she was “permanently removed from the Mother” (at [241]). Equally as plain, that harm can readily be described as arising from “family violence”, and thus is within s 60CC(2)(b).
The definition of “family violence” is to be found in s 4AB of the Act and includes behaviour that coerces or controls a member of the person’s family, and an example given in ss 4AB(2)(i) is “preventing the family member from making or keeping connections with his or her family, friends or culture”.
The father’s senior counsel suggested that this does not apply here because a family member does not include a child, but we reject that submission as well. Family member for the purposes of s 4AB is defined in s 4(1AB) and relevantly provides:
…
a person (the first person) is a member of the family of another person (the second person) if:
…
(e)the first person is or has been a relative of the second person (as defined in subsection (1AC)); or
…
(h)the first person ordinarily or regularly resides or resided with the second person, or with another member of the family of the second person;
…
(Original emphasis)
Subsection 4(1AC) defines the word “relative” for the purposes of ss 4(1AB) as being:
(a)a father, … of the person; or
(b)a … daughter … of the person;
…
Further, in ss 4(1AA) a reference to a person includes a reference to “any child whose interests are considered in, or affected by, the proceedings”.
In these circumstances we find no merit in this ground.
Ground 2
There were two unacceptable risks found by his Honour. First, the risk that “if [the child] were permitted to return to or visit the UAE or to leave the Commonwealth of Australia with the Father that the Father may seek to impose the law of the UAE” (at [238]). Secondly, the risk of the child being removed from Australia if she spent unsupervised time with the father (at [240]).
The complaint is that in making those findings his Honour did not actually find that if the father was permitted to take the child out of the country there was an unacceptable risk that he would retain the child in the UAE, and he would seek to apply Sharia law. Further, it is said that his Honour failed to find that there was an unacceptable risk that the father would take the child to the UAE and retain her there contrary to an order of this court. In other words, as explained in the summary of argument (at [7]), “[h]is findings as to unacceptable risk fail to address findings as to the likelihood that the [father] would act in the way feared or his propensity to do so”.
We reject these complaints. His Honour did not confine himself to the capacity of the father to do these things; he also addressed whether he would do them. For example, his Honour said this at [228 f), g) and k)]:
f)Whilst as noted I accept that the Father gave evidence that he would abide by determinations of this Court obviously that evidence was given without knowing the outcome of the proceedings. It would be naïve to assume that the Father will embrace without reservation the findings and conclusions of, and the orders made by, this Court and I have expressed significant reservations concerning the credibility of the Father’s evidence concerning some of the central issues in the case.
g)I accept the Mother’s evidence that historically the Father has threatened to ban the Mother from travelling to Dubai and has threatened not to allow [the child] to come to Australia. I accept that the Father threatened in the argument of … March 2012 to the effect that he would take [the child] back to Dubai and ban the Mother from seeing her. I accept the Mother’s evidence of his threats to the effect that he would “destroy” her. I accept that the Mother is genuine in the expression of her fears, that is, that she genuinely holds to the fears she has expressed.
…
k)The Mother genuinely, I find, believes that there is a significant risk of the Father removing [the child] to the UAE. I do not consider that such a belief is irrational or baseless. The Mother has, I also find, experienced the Father’s threats to retain [the child] in the UAE and to “ban” the Mother. That was before her criticisms of the Father had been aired in these proceedings. I have found the Mother to be a credible witness and the views she has formed of the Father are based upon her experience of him over the years of the marriage. Conversely, I have found the reliability of the Father as a witness to be in some doubt.
His Honour then concluded as follows:
229.Regrettably, because of my significant reservations about the reliability of the Father’s evidence no significant reliance can legitimately be placed upon the Father’s evidence to the effect that he will accept and abide by the outcome of these proceedings; and abide the orders of this Court; and would not in future, given the opportunity if [the child] returns to Dubai, seek to enliven the laws and jurisdiction of the court of the UAE to override the effect of the orders of this Court.
230.It bears repeating that it was the Father’s position throughout these proceedings, including when his Case Outline document was filed six days before the trial, that it was the jurisdiction of the UAE and not Australia that ought determine the issues. In all the circumstances there remains doubt about whether the Father’s change in position as at the outset of the trial is in fact for the reasons he gave in oral evidence or whether some kind of tactical decision is not actually matched by true conviction on the part of the Father. That aside, it is unlikely that the findings made by this Court will find ready acceptance with the Father given his case and evidence, and the feature that the Mother’s evidence and case has been preferred.
231.Whilst the Father gave evidence supportive of conclusions to the effect that he recognises the importance of the Mother in [the child’s] life and of the importance of their relationship my acceptance of the central features in the Mother’s case, in particular as to the threats the Father has historically made such as removing [the child] and to “ban” the Mother, give significant pause for thought about the Father’s true convictions for the future.
232.Even if it were concluded that the Father had, at the time of his giving evidence at trial, genuinely resolved to abide by the determination of this Court, there must be factored in a significant consideration as to what might occur in future if and when that resolve is tested. [The child] has only just turned four years of age. There are innumerable possibilities in the future as to changes of circumstances which may cause challenges to any present resolve of the Father including, as but one example, the Mother’s introduction into her life and that of [the child] of a new partner, or perhaps a series of partners. Similar changes may take place in the Father’s life.
233.In this context I note that the marriage between these parties subsisted for only six years between the date of marriage and the date of separation. Within that six years there have been significant periods when they have not lived together. Moreover, the evidence is replete with examples of the disharmony between the parties and the disagreements between them. If history is any guide the parties will confront differences in the future. The Father would hardly see it as “unlawful” that he engage the laws of his country of origin; or to exercise to their fullest extent his rights under those laws.
These findings led to his Honour’s ultimate findings in [238] and [240], referred to above.
Although it is correct, as the father’s senior counsel submitted, that there must be a factual basis to his Honour’s findings, that does not prevent that factual basis comprising a rejection of the reliability of the evidence of the father, and in particular his evidence that he would abide by orders of the court. It also must not be overlooked that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk (Malec v J C Hutton Pty Ltd (1990) 169 CLR 638), as long as there is a proper basis for those “possibilities”.
We consider that there was a proper basis, as identified by his Honour in his reasons set out above, and again there is no error here.
Ground 3
This ground is an alternative to Ground 2, and challenges the adequacy of the reasons given by his Honour in finding that the father was likely to act in any of the ways described in Ground 2 so as to constitute unacceptable risk.
We consider that what we have said in relation to Ground 2 appropriately addresses this challenge and we find no merit in it.
The principles in relation to the adequacy of reasons are well settled (for example, see Bennett and Bennett (1991) FLC 92-191), and in summary, an appellate court should be able to discern either expressly or by implication the path by which the result has been reached by the trial judge.
Here, the path that his Honour took to reach his decision is readily apparent; for example, in [228] his Honour sets out the factors that must be considered in assessing the relevant risks, there are then his Honour’s conclusions as to unacceptable risk in [229] – [233], and which led to what his Honour said at [238], [239], and [241], as set out above in [62].
Ground 4
This ground is clearly related to Grounds 2 and 3, but focuses specifically on [229] of his Honour’s reasons, set out above in [97].
The complaint is that his Honour’s finding that the evidence of the father was unreliable cannot be translated into a positive factual finding that the father is likely to act in the way referred to.
As we have already said, in assessing whether there was an unacceptable risk it was not necessary for his Honour to positively find that the father was likely to act in the way identified; his Honour had to identify and assess the nature of the risk and the degree or magnitude of the risk (Deiter & Deiter [2011] FamCAFC 82, at [61]). There appears to be no challenge to his Honour’s identification of the nature of the risk, but otherwise in relation to the degree or magnitude of the risk.
The evidence of the father was that he would not only abide by the orders of the court, but also he would not invoke Sharia law. However, his Honour did not accept this evidence, and found the father to be an unreliable witness. Thus, his Honour found that there was an unacceptable risk and the father would do what he was concerned about. That finding was clearly open, and there is no error here by his Honour. However, it is plain that his Honour did not simply base that finding on a refusal to accept the evidence of the father. There was the evidence described in [231] that gave his Honour “significant pause for thought about the Father’s true convictions for the future”.
Again we find no error by the trial judge here.
Ground 5
This ground directly attacks [231] of his Honour’s reasons for judgment. The error is said to be his Honour’s failure to find that the statements of the father were genuine statements of how he would act, and constituted a likelihood that he would act in that way.
It seems to us that that raises the same questions that Grounds 2, 3 and 4 raise, and we consider that what we have said in addressing those grounds adequately deals with this ground.
The plain fact of the matter is that his Honour accepted that the father made these relevant statements and threats, and coupled with his Honour’s rejection of the reliability of the father’s evidence, that allowed his Honour to find that there was an unacceptable risk that the father would act in that way in the future.
It is also not correct, as submitted by the father’s senior counsel in [15] of his summary of argument, that his Honour did not mention the historical statements and threats in his conclusions set out in [229] – [246]. As referred to above, his Honour specifically referred to these statements and threats in [231].
Ground 6
The complaint here is that his Honour took into account “his views” that the law in the UAE would “operate contrary to the welfare of the child”.
First, nowhere in his Honour’s reasons is this expressed or implied. Secondly, his Honour was tasked under the Act with deciding this case on the basis of what was in the best interests of the child as defined in s 60CC of the Act. A primary consideration there is effectively to ensure that the child is able to enjoy the benefits of having a meaningful relationship with both parents. Thus, it was important for his Honour to know what impact the laws of the UAE, if invoked by the father, would have on that consideration. In that regard, his Honour heard expert evidence called by both parties as to the laws of the UAE that would be applied if the parties, or even just the father, and the child were in that country pursuant to orders that his Honour may make.
On the basis of that expert evidence, his Honour concluded as follows at [236]:
The simple and stark reality in this case is that the laws of Australia guarantee for [the child] a meaningful relationship with both of her parents, irrespective of their gender or nationalities, subject only to “best interest” considerations as expressed in s 60CC of the Act. The laws of the UAE do not provide that same guarantee for [the child].
For his Honour to focus on the application that was before him, and on the principles governing that application, was plainly correct and in accordance with authority (Pascarl & Oxley (Edited) (2013) FLC 93-536).
The father attempted to draw an analogy with forum non conveniens proceedings, and cited the High Court decision in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. However, apart from the fact that the father abandoned his application which would have invoked those principles, we do not accept that there is an analogy to be drawn here. To repeat, his findings in this regard were made in the context of his Honour deciding the case by addressing the best interests of the child as defined in s 60CC of the Act, and that is an entirely different circumstance.
Further, the father’s attempt to draw a similar analogy based on what the court of appeal said in Re M (Abduction: Peremptory Return Order) [1996] 1 FLR 478 (Dubai) in dismissing an appeal from a summary order for return to Dubai also fails. His Honour was not saying that “facilities for a fair hearing will not be provided in the courts of the UAE”, but it is the application of the law of the UAE which is relevant to the decision that the trial judge had to make.
There is no merit in this ground.
Ground 7
This ground in effect challenges the adverse findings by his Honour as to the father’s credit.
There are two alleged errors by his Honour identified in this ground, but the father’s summary of argument, and his senior counsel’s oral submissions, only addressed the second alleged error. In any event, we can find no basis to conclude that his Honour made the first error alleged, and this aspect of the ground has no merit.
As to the second alleged error, it is submitted that it was not open to his Honour to find, as he did at [183], that the rejection of the evidence of Ms G, and the acceptance of the mother’s evidence and that of her witness Ms S, was damaging to the father’s credit, when it had not been established that the father had knowledge of the untruthfulness of the evidence of Ms G.
However, that misses the point of his Honour’s finding. The relevant evidence of Ms G was her denial that the father had ever assaulted her, despite the mother’s evidence that Ms G had told her that assaults had occurred, and that this was corroborated by the evidence of Ms S. The father’s evidence was that he too denied that he had ever assaulted Ms G, and importantly he had relied on the evidence of Ms G as corroboration of that.
Thus, for his Honour to reject the evidence of Ms G, the father’s corroborative witness, and to accept the evidence of the mother and Ms S as to what Ms G had told them, plainly discredited the evidence of the father.
However, even if we are wrong about that, and we concluded that from an evidentiary perspective his Honour was not entitled to find that the father’s credit was damaged, it cannot alter his Honour’s adverse finding as to the credit of the father. That is because this was just one example on which his Honour based this finding; there are many other examples as his Honour identified in [128], and his Honour was thereby entitled to conclude that the father was not a reliable witness on disputed issues of fact.
In any event, we find no merit in this ground of appeal.
Ground 8
It is clear that his Honour referred to this topic at various stages of his reasons for judgment. However, that cannot be an error by his Honour; it was a relevant part of the history of the proceedings (at [27] – [34]), and of the father’s case leading up to the trial (at [51). Further, at [65] his Honour was confirming what was now before the court, and at [228 d)] and [228 e)] his Honour was again outlining the relevant history.
As identified by the father, the complaint largely focusses on [230] as set out above in [97].
However, that paragraph must be read in context, and in particular together with [228 d)] and [228 e)], then [229], and finally, the subsequent paragraphs thereafter. That context was his Honour’s concerns as to the lack of reliability of the father’s evidence, and the prospect of the father not accepting and not abiding by the outcome of the proceedings. However, in [230] his Honour clearly did not put this topic front and centre as the basis for these findings. After repeating the topic, his Honour said “[t]hat aside”, and continued on to say “it is unlikely that the findings made by this Court will find ready acceptance with the father given his case and evidence, and the feature that the mother’s evidence and case has been preferred”.
Thus, the topic did not play a significant part in his Honour’s conclusions as to unacceptable risk, but it was clearly relevant historically and his Honour was left in doubt as to the father’s motives in changing his mind at the commencement of the trial.
Again we find no error here by the trial judge.
Grounds 10 and 11
These grounds were argued together by the father’s senior counsel, and it is convenient to adopt that course.
The principal complaint is that his Honour failed to give adequate reasons for imposing supervision given the other safeguards put in place, and for limiting the time the child spends with the father.
We consider that there is substance in this complaint.
It was the mother who sought that time spent be supervised. There were two bases for that, namely, the risk of a continuation of the father’s inappropriate physical discipline of the child, and the risk that the father would remove the child from Australia. In the end result, his Honour found that there was no need for supervision to quell the first risk, but there was a need for supervision to prevent the second risk (see [245] and [246]). His Honour said this at [240]:
I find, by the same process of reasoning, that [the child] spending unsupervised time with the Father would presently, and for the immediately foreseeable future, pose an unacceptable risk to [the child’s] welfare represented by the risk of her being removed from Australia.
The “process of reasoning” referred to in that paragraph is that contained in [236] – [239] (set out above). However, nowhere does his Honour consider or explain, other than referring to the father as a “flight risk”, why there is a need for supervision given the other safeguards that his Honour proposed to put in place, namely, in terms of the surrender of passports and the Airport Watch List. It must also be observed that this court has expressed concern about orders being made for supervision that are indefinite, in the sense of no expiration specified or provision made for review (see Moose & Moose (2008) FLC 93-375 at [10] and Slater & Light (2013) 48 Fam LR 573 at [69]).
The father opposed the imposition of supervision, not only because it was unnecessary (and noting that the family report writer agreed with the father), but because of the limitations it created for the child spending time with him. Again, that was not addressed by his Honour, and it leads into the second aspect of the complaint (Ground 11).
The father was seeking that the child spend all of her Australian kindergarten or school holidays at the end of terms one, two and three, and half of the school holidays at the end of term four, with him. Further, the father sought that when he is in Australia outside of those times, the child spend from Wednesday after school/kindergarten until before school/kindergarten on Sunday of week one, and in week two from after school/kindergarten on Thursday until before school/kindergarten on Sunday with him.
The mother opposed these orders and indeed, opposed overnight time. For his part, the family report writer suggested that the child spend one or two nights per week with the father when he is in Australia.
His Honour’s conclusions as to this aspect of the proceedings are as follows:
364.I have determined, for reasons already outlined, that an equal time order would not be in [the child’s] best interests at this stage. I consider that to be so based upon Mr [M’s] evidence and my own conclusions as to [the child’s] attachment with her primary care figure and my findings on the best interest considerations overall. Superimposed upon that is the issue of “flight risk”.
365.Provided the Father can arrange and finance the present supervising service [LC Services] or such other firm as provides equivalent supervising services I consider that the balance between [the child’s] need for a meaningful relationship with the Father and for her to spend substantial and significant time with the Father during periods when he is in Australia is achieved by supervised time from 5pm Friday until 5pm Sunday in the first week and in the second week overnight from after kindergarten or school or otherwise at 3pm on a Wednesday until the commencement of kindergarten/school on Thursday or 9am Thursday and weekend time.
366.It may be that a commercial provider of supervision services will not undertake overnight periods in which even these times are to be treated as maximums with actual time being as much of them as is possible. Supervision is the priority.
It is apparent that his Honour’s reasons for limiting the substantial and significant time that would otherwise be appropriate on the evidence was the “flight risk” posed by the father, and the need for supervision to prevent that risk.
However, his Honour failed to adequately explain in his reasons why it was necessary for the child’s time with the father to be restricted in order to prevent the “flight risk”.
In these circumstances we find merit in these grounds of appeal.
Ground 12
The complaint here appears to be that his Honour’s reasons, rather than what his Honour said or did during the hearing, demonstrate apprehended or actual bias. It is suggested that because his Honour failed to “express reasons identifying propensity on the part of the [father] to act in the direction of any of the unacceptable risk concerns” (emphasis omitted), his Honour’s reasons would lead to the conclusion that a finding of unacceptable risk would be made against “any Muslim father of wealth or influence who lives in a country of Islamic rule”.
We consider this to be a far-fetched submission without any basis whatsoever. Certainly no relevant authority was cited in support of the same, and we agree with the submission of the mother’s senior counsel (at paragraph 43 of the summary of argument), namely:
There is no reasonable basis for extrapolating findings and conclusions reached by His Honour, which were based largely on particularized findings as to credit of this father, to “any Muslim father of wealth or influence who lives in a country of Islamic rule.
We can find no merit in this ground of appeal.
Conclusion
Having found merit in Grounds 10 and 11 the appeal will be allowed in part. The question then becomes whether we are able to re-exercise the discretion or whether we must remit the matter for rehearing.
The issues the subject of Grounds 10 and 11 were whether supervision is required, and what time should the child spend with the father.
The trial judge recognised that the orders had some temporal limitation considering particularly the then age of the child, who was four years (at [213], [214], [335] – [338]).
Given the passage of time since his Honour’s decision, and the prospect that circumstances will have changed, and given the applications to lead further evidence in any event, it is readily apparent that there would be a need for further evidence to be adduced in relation to these issues. It can also be assumed that some, at least, of that evidence would be controversial and require cross-examination. Thus this court would not be in a position to re-exercise the discretion, and the matter must be remitted for rehearing to a single judge at first instance who can more readily and easily address that further evidence. However, there should only be a partial remitter on the topics the subject of Grounds 10 and 11.
Unfortunately, there will be a delay before the rehearing can take place, and therefore we propose to only set aside the relevant orders as on and from the time that the judge who is to conduct the rehearing becomes seized of the matter.
The applications in an appeal
As mentioned above, by application in an appeal filed on 12 September 2014 the father seeks to adduce further evidence in the appeal. Further, by application in an appeal filed on 6 November 2014 the mother also seeks to adduce further evidence in the appeal.
The principles as to the receipt of further evidence are set out authoritatively by the High Court in CDJ v VAJ (1998) 197 CLR 172 and they need not be restated.
The further evidence sought to be led by the father is set out in his affidavit also filed on 12 September 2014. That evidence, as described in the affidavit, first comprises “Circumstances since the conclusion of evidence”. That evidence details the alleged interaction between the parties and in particular alleges a resumption of a sexual relationship between them and the prospect of a reconciliation. It further details the interaction between the father and the child, and discussions between the parties as to that.
The first point to note about this evidence is that there was no application by the father prior to the delivery of his Honour’s judgment on 19 November 2013 to reopen the proceedings to adduce the evidence, and that would appear to us to be fatal to the application to now adduce this evidence.
The second point is that we understand some of the evidence to be controversial, and that also points to a refusal to receive the evidence.
The third point is that it needs to be established how that evidence demonstrates error by the trial judge (CDJ v VAJ at 201 per McHugh, Gummow and Callinan JJ). In this regard, the father’s senior counsel submits that the evidence demonstrates error in three areas. First, as to the genuineness of the mother’s fear of the father, secondly, as to his Honour’s findings as to credit, and thirdly as to the difficulties with the orders insofar as they provide for time spent and supervision.
In relation to the first area, we agree with the submission of the mother’s senior counsel that the relevant fear that the mother had, and that his Honour acted upon, was a fear of the father removing the child and of what the father would do if he was able to take the child to Dubai. This evidence (even if accepted) does not address that crucial issue, and thus does not demonstrate error by the trial judge.
In relation to the issue of credit, the most that this evidence reveals (again if accepted) is that the mother was untruthful about whether she had had sexual relations with the father following the separation. Credit of course was important to his Honour, and although he made positive findings overall about the credit of the mother there were some issues where his Honour found her evidence to be inconsistent. Thus, we are not persuaded that this further evidence would have altered his Honour’s findings. We also observe that what was crucial to his Honour was the lack of reliability of the evidence of the father, and this further evidence does not go directly to that issue.
In relation to the third submission, because we have found merit in Grounds 10 and 11 in any event, it is unnecessary for us to receive that evidence for the purposes of demonstrating error.
The balance of the evidence, as also described in the affidavit, comprised “Time spent with [the child] in May/June 2014”.
Clearly that evidence post-dates his Honour’s decision, and we understand again that some aspects of it are controversial. It also fails to demonstrate any error by the trial judge, and we are not disposed to receive that evidence. We note of course that given the proposed remitter, that evidence would be able to be adduced before the new trial judge.
In these circumstances we propose to dismiss this application in an appeal.
The further evidence sought to be led by the mother is set out in her affidavits filed on 6 November 2014 and 21 November 2014. However, given that the appeal is only being allowed in part, and this evidence does not relate to either of the issues raised in Grounds 10 and 11, it is unnecessary for this court to consider this application, and we propose to dismiss it. As a result, we also do not need to consider the responding affidavit filed on behalf of the father.
Costs
At the conclusion of the hearing we sought submissions from the parties as to costs depending on the result of the appeal.
Both parties sought that they have the opportunity to present written submissions as to the question of costs, and we are content to provide for this in the orders that we propose.
This also applies to the costs applications that were left to this court to determine.
Tree J
I have had the opportunity to consider the draft reasons of May and Strickland JJ in this matter. Whilst I agree that the appeal should be allowed for the reasons which they propose, I would also allow the appeal on ground 3 as well. That inevitably means that the scope of the subsequent rehearing would be broader than that contemplated by their Honours’ orders, and probably unconstrained. However for the reasons which they advance, I agree that the appeal otherwise must fail.
In my judgment, ground 3 should succeed for the following reasons.
Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
Whilst I agree that in assessing the prospect of future events occurring, possibilities may be taken into account, rather than the court needing to be satisfied that the future occurrence is more probable than not, if doing so, the court is not absolved from gauging, or at least attempting to gauge, the magnitude of the likelihood. A farfetched or remote possibility, even if the consequences should it eventuate be grave, may not be sufficient to establish an unacceptable risk; conversely a reasonable possibility may well do so. Plainly however the judicial reasoning underpinning the assessment of the likelihood of the event occurring must be adequately exposed.
The risk being addressed by the trial Judge here was that, if the father were permitted to take the child to the UAE, he may invoke Sharia law and retain the child there. His Honour was satisfied that the prospect and magnitude of harm being visited on the child if the father so acted was great (at [237]). No criticism is made of inadequate exposure of reasons in that regard. Rather the attack was on the reasons relating to the likelihood of the father so acting.
The relevant aspects of His Honour’s reasoning in this regard are as follows:
·His Honour found that “… no significant reliance can be legitimately be placed upon the Father’s evidence to the effect that he will accept and abide by the outcome of these proceedings; and abide the orders of this Court; and would not in the future, given the opportunity if [the child] returns to Dubai, seek to enliven the laws and jurisdiction of the court of the UAE to override the effect of the orders of this court” (at [229]);
·He noted that “… the threats the Father has historically made such as removing [the child] and to “ban” the mother, give significant pause for thought about the Father’s true convictions for the future” (at [231]);
·Further, his Honour commented that even if the father has “… genuinely resolved to abide by the determination of this court, there must be factored in a significant consideration as to what might occur in future if and when that resolve is tested” (at [232]);
·Finally, he observed that “[t]he Father would hardly see it as “unlawful” that he engaged the laws of his country of origin; or to exercise to their fullest extent his rights under those laws” (at [233]).
Those passages do little more than confirm the existence of the risk; what is missing is any assessment of its magnitude. Phrasing such as placing “no significant reliance” on the father’s evidence, and it giving his Honour “significant pause for thought” are somewhat informative, but inconclusive. Even accepting that his Honour must have been persuaded that the likelihood of the father so acting was sufficient, in light of the prospect and magnitude of harm to the child, to make the risk unacceptable, the father is left without any actual finding as to what that likelihood was. Was his Honour satisfied that it was more probable than not, or a real and substantial possibility, or only a remote chance? The judgment is wholly silent on the point. Absent such reasoning being exposed, the father is therefore deprived not only of knowing the assessed likelihood that he will so act, but more, therefore unable to challenge such a conclusion as not being reasonably open on the evidence.
For those reasons, I am persuaded that ground 3 is made out.
I certify that the preceding One Hundred and Seventy Six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland & Tree JJ) delivered on 25 November 2015.
Associate:
Date:
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