Bellanger & Wemble (No 3)
[2024] FedCFamC2F 1139
•20 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellanger & Wemble (No 3) [2024] FedCFamC2F 1139
File number(s): MLC 5456 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 August 2024 Catchwords: FAMILY LAW – Parenting – where children alleged to have been removed by force from the “live with” parent in a foreign place – grandparent alleged to have aided and abetted contravention of final orders and recovery order – whether a grandparent should be restrained from leaving Australia – where it is alleged a parent retains children in a foreign country and a grandparent aids and abets that retention- consideration of impact of culture and customary law of a foreign country – where it is alleged children detained to enforce return of dowry – dowry paid in animals more than a decade ago – whether injunctions may support return of children to the “live with” parent – whether any risk of flight – potential serious penalties if mother’s case made out, including imprisonment – whether section 92 of the Constitution implied freedom of movement – interim injunctions made. Legislation: Acts Interpretation Act 1901 (Cth) s 7(2)(b-e)
Criminal Code Act 1995 (Cth) ss 11.2(1)-(3) and 15.4
Family Law Act 1975 (Cth) ss 7A, 65M, 65P, 65Q, 65YA, 67X(2)-(3), 68B, 70NAC, 70NDA and 114
Cases cited: AMS v AIF (1999) FLC 92-852
Bellanger & Wemble [2023] FedCFamC2F 1246
Eaby & Speelman (2015) FLC 93-654
Gerner and Anor v Victoria [2020] HCA 48, (2020) ALR 394
Goode and Goode (2006) FLC 93-286
Whitehall & Talaska [2024] FedCFamC2F 768
Division: Division 2 Family Law Number of paragraphs: 118 Date of last submission/s: 3 May 2024 Date of hearing: 3 May 2024 Place: Melbourne Solicitor for the Applicant: Sunshine Lawyers The First Respondent: In Person Counsel for the Second Respondent: Mr Tesoriero Solicitor for the Respondents: Ajak & Associates ORDERS
MLC 5456 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BELLANGER
Applicant
AND: MR WEMBLE
First Respondent
MS PAIGE
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 AUGUST 2024
THE COURT ORDERS THAT:
1.Until further order the second respondent, Ms Paige (‘the Grandmother’) be and is restrained from leaving the Commonwealth of Australia.
2.MS PAIGE, be and is restrained from departing the Commonwealth of Australia.
3.The Court requests that the Australian Federal Police give effect to this order by placing Ms Paige on the Family Law Watch List in force at all points of international arrival and departure in the Commonwealth of Australia and maintain Ms Paige on the Family Law Watch List for the said period, until the Court orders its removal, or with the consent of all parties. This order ceases to have effect 2 years after the date on which it is made.
4.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders.
5.The contravention application served on or about 30 April 2024 be treated as filed at that date for all purposes.
6.All extant applications, including the application for contravention against the respondents, be and are listed for final hearing before Judge O’Shannessy on 11 November 2024 at 10.00am.
7.The parties are permitted to rely on affidavit material already filed and served, provided notice is given to the other parties in writing no less than 21 days prior to hearing and, save as to the respondents’ evidence in defence of the contravention application (if any), any further evidence must be on affidavit and filed and served no later than 21 days prior to the hearing.
8.Any amended application or response be filed and served no later than 28 days prior to final hearing.
9.Pursuant to s 68L(2) of the Family Law Act 1975, X born in 2011 and Y born in 2013 be independently represented AND IT IS REQUESTED that Victoria Legal aid body arrange such independent representation and:
(a)forthwith upon appointment by state/territory legal aid body or otherwise, the Independent Children's Lawyer file a notice of address for service;
(b)within 48 hours of notification of such appointment the solicitors for the respective parents (or, if unrepresented, then the parent themselves) provide to the Independent Children's Lawyer copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports;
(c)the Independent Children's Lawyer fulfil the requirements set out in 'Guidelines for the Independent Children's Lawyer' as published on the website of the Federal Circuit and Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7; and
(d)the Independent Children's Lawyer prepare a minute of the orders they will recommend be made as final orders.
10.Leave is granted to the Independent Children's Lawyer to inspect and copy:
(a)Subpoena material produced by Home Affairs on 3 May 2024;
AND THE COURT NOTES:
A.The Court will seek (and may or may not obtain) the assistance of a single expert witness as to the applicable law of Country D including the interaction between legislated law and customary law including the local law or custom or practice of return of dowry, and residence of children, after divorce.
B.An Independent Children's Lawyer has been appointed for the following reasons:
(a)The allegation of abuse of the children by the forceable removal of them from the “live with” parent.
C.Victoria Legal Aid has been given access to this file via the Commonwealth Courts Portal ("CCP") and is granted leave to view copies of documents available on the CCP.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY:
INTRODUCTION
On 3 May 2024 I heard an application seeking to restrain the second respondent, Ms Paige, from leaving the Commonwealth of Australia and what is known as a “Watchlist” order (‘the Injunction and Watchlist orders’). I had previously made such orders ex parte. Those orders had been made on 23 January 2024 and brought to the attention of Ms Paige soon after. Those ex parte orders returned to Court before me on 2 February 2024. On the application of Ms Paige the return of the ex parte order was adjourned to 3 May 2024 and the Injunction and Watchlist orders continued in the meantime.
On 3 May 2024 I heard submissions from the applicant’s solicitor, from the respondent in person (via telephone from Country D) and from counsel for the second respondent. I reserved my decision and reasons but ordered that, in the meantime, the Injunction and Watchlist orders (made ex parte orders on 23 January 2024) continue until my decision. This is my decision and these are the reasons for that decision.
DECISION: RESTRAINT & WATCHLIST CONTINUES
The matter, including the applicant’s contravention application against the second respondent, will return for final hearing before me on 11 November 2024. Having considered all of the evidence and the submissions to me, I will order, until further order, that the second respondent be restrained from leaving the Commonwealth of Australia and a “Watch list” order made on 23 January 2024 remain in full force. I will also order that the children who are the subject of the orders be separately represented. I make those orders for the reasons now set out. In these reasons I refer to the applicant as ‘the Mother’, the respondent as ‘the Father’ and the second respondent, Ms Paige, as ‘the Grandmother’.
BACKGROUND
A detailed background can be found in the first decision of this Court concerning the subject children, anonymised as Bellanger & Wemble [2023] FedCFamC2F 1246, 18 September 2023 (‘the September proceedings’). I repeat some passages from that decision by way of summary:
3The mother, Ms Bellanger (‘the Mother’), who is 31 years of age, and the father, Mr Wemble (‘the Father’), who is 36 years of age, commenced living together in or about 2010 and married in 2011. They separated in November 2014. By that time, they had two children. They divorced, according to the law of Country D, in 2019. Final parenting orders were made in this court on 16 August 2021 for the parents to have equal shared parental responsibility but for Ms Bellanger to have sole parental responsibility for the day to day decision making of the children and for them to live with her, with provisions for spending time and communicating with Mr Wemble.
4In proceedings before me today, the children’s mother, Ms Bellanger, seeks a recovery order issued in the usual terms for the delivery up of the children to her.
5By way of background, the Mother alleges that she took the children to Country D to visit her father in late 2021 and that Mr Wemble and his mother, the Second Respondent, Ms Paige, also went to the same place in Country D at that time. She says that Mr Wemble initiated parenting proceedings in Country D and that the matter finalised in 2022 with the Court recognising the final orders of this court made on 16 August 2021. She says that shortly after that, Mr Wemble had her father arrested in proceedings relating to repayment. She says that she and her family, including the children, went to a hearing in early 2023 relating to that matter and while there, Mr Wemble, Ms Paige (the Father’s mother) and a group of their supporters beat her up and took the children away in a motor vehicle, and that she has not seen them since and has only spoken to them once since then. She says that Mr Wemble and Ms Paige are keeping the children in City B, a city in C State in Country D. Ms Bellanger is now in Country E, and is seeking for the children to be either taken back to Australia or recovered to her in Country E, where she says she will organise for them to return to Australia. The parents and children are Australian citizens.
…
36.I now turn to the rather complicated history of events between the parties. Ms Bellanger and Mr Wemble separated in November 2014. At that time, Mr Wemble left Australia and travelled to Country D. The older child was just 3 years of age, and the younger child was roughly 18 months old. Mr Wemble left the children with their mother. He did not return to Australia until he needed medical treatment by the Australian health system in 2017. He travelled to Australia and, I infer, at public expense had medical treatment. He had apparently suffered a serious injury in a motor vehicle accident in Country D, or thereabouts. Whilst in Australia, he was able to negotiate with the child support authorities and pay arrears of child support that were apparently fixed in the order of approximately $5000.
37In late 2017 Mr Wemble apparently again left Australia, again leaving the children in their mother’s care. The older child, X, would have been just finishing prep at his primary school in Melbourne (prep is the term used in Melbourne for preparatory or introductory year of school). The younger child, Y, would have been just about to commence prep in the January of the following year. The children remained living in Australia in the care of their mother thereafter. Mr Wemble had not otherwise spent time with the children up until the time the mother commenced proceedings on 30 April 2021.
38When Ms Bellanger commenced proceedings in 2021, she simply sought relief that she have sole parental authority for the children and that she be entitled to obtain passports for the children. That matter was returnable before me at that time. I have consulted the Court file about what the issues were between the parents at that time and also to assist me with context. On 30 April 2021, Ms Bellanger simply sought an order that she be granted a court order to obtain the children’s passports and that Mr Wemble be served with her initiating application by email. Ms Bellanger filed a quite detailed affidavit relating to the history of her relationship and events since. In that affidavit, she set out the reason that she had issued proceedings. At paragraphs 17 to 22, she set out the events that caused her to make application to the Court, which read:
17. I also want to be flexible to travel with my children whenever I am travelling overseas to any country. I am a single mother with underaged children who need my constant supervision all the times. I need to be able to travel with them at all times when I am travelling.
18. All my relatives are overseas. I am unable to travel to see my family when I can afford it, because no can reliably look after my children.
19. My father is very old in his 80s and has ill health with several health complications. He has not seen my children.
20. My mum saw my eldest son when he was 5 months old because he was born overseas before I came to Australia . My eldest son turned 9 years now and has never seen my parents since he was 5 months old. My other son, Y has not met my parents or any other immediate family member at all.
21. It is not easy to obtain visitor's visa for my parents or immediate family to visit me and my children in Australia.
22. I recently applied for a mediation to resolve this issue. However, my ex-partner refused to participate.
39Mr Wemble at that time responded, and on 21 July 2021, notwithstanding that he was apparently not in Australia at the time, he had solicitors act on his behalf and file an affidavit and a response document in court. Mr Wemble’s response sought an order for equal shared parental responsibility and for orders that he be permitted to speak to the children by telephone in the circumstances of him living in Country D and the children living with their mother in Australia.
40By this time of mid-2021, the child X, the older child, had progressed to grade 4 at the primary school where he commenced school. The younger child Y had progressed to grade 3. In 2018 (the year after the Father was last in Australia), the older child was in grade 1 and the younger in prep, both attending the same school. In 2019, unvisited by the father, the older child was in grade 2 and the younger child in grade 1. In 2020, unvisited by the father, the older child was in grade 3 and the younger child was in grade 2. The children had spent their entire school lives at the same school in the same outer suburb of Melbourne to that point in time.
41Mr Wemble’s affidavit was filed 21 July 2021, and in that affidavit he complained that Ms Bellanger did not permit him to speak by telephone to the children. Somewhat ironically, he observed the following in that affidavit:
6. I am concerned that Ms Bellanger will travel with the children to countries that are not signatories to the Hague Convention, such as Country E where her family live, and may not return the children to Australia.
…
45. I became concerned about Ms Bellanger’s behaviour and her motives for obtaining passports for the children and I withdrew my consent for the children to obtain passports. Ms Bellanger has not allowed the children to communicate with me since then.
…
51. Ms Bellanger has not consulted me regarding the children’s education. I do not know where the children go to school or how their learning is progressing. The only updates I receive about the children is what I hear through community members via my family.
…
43The matter returned before me on 16 August 2021. I have a recollection of the appearances before me of that day. It may be that I have the recollection because I do not get a lot of matters where one of the parties is living in Country D. In any event, I remember the appearances that day. I recall Mr Monoah appearing for the Applicant Mother, Ms Bellanger, and I recall Mr Wemble appeared by counsel instructed by the solicitors well familiar with the jurisdiction. I made the following orders by consent that day:
THE COURT ORDERS BY CONSENT THAT:
Parental responsibility
1.The parties have equal shared parental responsibility for all long term decisions in relation to the children [X] born [in] 2011 and [Y] born [in] 2013 (“the children”).
2.The Mother have sole parental responsibility for the day to day decision making of the children.
Living arrangements and communication
3. The children live with the Mother.
4.The Mother shall facilitate contact between the children and the Father by video or voice call on two occasions per week on days and time as may be agreed between the parties and failing agreement, with the Father to place the call to the Mother’s phone, as follows:
(a)Each Wednesday between 7.30pm and 8.00pm Australian Eastern Standard Time (“AEST”); and
(b) Each Saturday between 5.00pm and 6.00pm AEST.
5.The Father be permitted to send gifts, cards, letters and emails to the children and the Mother shall provide them to the children.
6.When the Father travels to Australia, he spend time with the children as follows:
(a)As agreed between the parties in writing, and for no less than two occasions of five hours per week; and
(b)That the Father provide the Mother with at least 14 days’ notice of the dates he will be present in Australia; and
(c)That the Father be permitted to take the children to visit the Paternal Grandmother, Paternal Aunts and Paternal Uncle when the children are in his care.
7.Each parent shall advise the other of any change to their telephone number, residential address or email address within 7 days of such change.
8.In the event members of the extended paternal family request to spend time with the children, the Mother shall facilitate such spend time arrangements as may be agreed between the Mother and the extended paternal family.
…
Travel and Passports
12.Pursuant to s11(b)(i) Australian Passports Act 2005 (Cth), the Mother is permitted to do all acts and things and sign all necessary documents to herself obtain and maintain passports for the children [X] born [in] 2011 and [Y] born [in] 2013, at her sole expense, and without requiring the Father’s signature notwithstanding Order 1 herein.
13.The Mother is permitted to travel overseas with the children as follows:
(a)The Mother provide the Father with 30 days’ written notice of her intention to travel, including proposed destination, copies of return flight itineraries when available and details of where the children will be staying during the proposed trip; and
(b)The Mother continue to facilitate the children communicating with the Father via video or voice call on two occasions per week at times to be agreed during her period of travel; and
(c)The Mother provide the Father with written confirmation of landing at each destination (including upon the children’s return home).
[Notations omitted]
44True to her word, Ms Bellanger then arranged for herself and the children to travel to Country D for the purpose of visiting her father. However, Mr Wemble came to know of or became aware of that travel, and wherever he was, he ensured that he arrived at the same place in Country D two days after Ms Bellanger had arrived. Ms Bellanger and the children arrived in late 2021, and Mr Wemble arrived in late 2021. Mr Wemble’s mother and Ms Bellanger’s mother also arrived at the same place.
45Ms Bellanger alleges that Mr Wemble, his mother and her mother, and Mr Wemble’s sisters were involved in a plan or arrangement whereby the children would be removed from her care. I do not make any finding in regard to that allegation at this point on this return of the matter. That may be a matter that I deal with on another occasion.
46It is apparent and clear enough that there was a dispute, or at least an unhappiness on the part of Mr Wemble in terms of the dowry that had been paid by him or on his behalf for the consent or permission to marry Ms Bellanger. Although not covered in detail in affidavit, I permitted Ms Bellanger to give further oral evidence before me this day. She told me, and I accept, that the original dowry was about 150 animals. As a result of Mr Wemble’s unhappiness in regard to Ms Bellanger’s family retaining the dowry, notwithstanding or because of the separation and divorce of the parties, that Mr Wemble issued or commenced court proceedings in Country D soon after their arrival seeking that the children live with him in Country D. Those proceedings were, as I understand it, in City B Court in C State in Country D. There were numerous attendances at that court in regard to those proceedings, with the last day being in early 2022. I have not seen any official court documents from those proceedings, but I am satisfied that Ms Bellanger’s account of the proceedings is close enough.
47Mr Wemble sought orders that the children live with him. Ms Bellanger retained local lawyers and produced to the Court the consent orders of 16 August 2021 made in this court. The end result was that the honourable officers of City B Court in C State in Country D determined that the children should remain with their mother, Ms Bellanger. I am told and I accept that the Court recognised or took into account the 16 August 2021 orders of this court. The children had not been removed from their mother’s care at this point. The children remained in their mother’s care at all times up to the conclusion of those proceedings, on or about early 2022.
48Soon after the conclusion of those proceedings, Mr Wemble was able to take further proceedings in City B Court relating to the repayment. These proceedings were commenced soon after early 2022 and had the immediate effect of Ms Bellanger’s father being arrested and placed in jail. He was released after some few days, but the proceedings and the threat of jail hung over his head. As Ms Bellanger understands it, Mr Wemble was leveraging the children’s welfare in the proceedings to further enhance his case of obtaining the repayment. A significant number of animals were returned in early 2022, and I am told by Ms Bellanger’s solicitor and accept that a plea was made to the Court that time be allowed to recover the animals to be returned because of natural events that had occurred. It appears to me, on the little that I know about the proceedings, that the Court adopted a practical and commonsense approach, and an arrangement was entered into or agreed or ordered that the dowry of animals would be returned in bits and pieces as animals become available. To the best of Ms Bellanger’s information, in early 2022 some 40 or so animals were returned, and then in mid-2022 a further 20 or so animals were returned, and then in mid-2022 a further number of animals were returned, and she is not sure of the numbers, were returned. I use the word “returned”, whereas that word could also be “paid”. It is not necessarily the same animal.
49I found Ms Bellanger’s evidence before me to be frank and unembroidered. I accept what she has told me for the purpose of these proceedings. The consequence of the continuing proceedings against Ms Bellanger’s father, who I note is more than 80 years old and has had surgery in Australia so cannot be said to be of stout health, was that the matter returned to Court in early 2022. It is important that I note that up until early 2022, the children had remained in their mother’s care, notwithstanding that she was staying in City B. She attended Court that day with her family and the children. Outside the Court building, she and her family were set upon by Mr Wemble and his family and his supporters, including Ms Paige. Ms Bellanger was assaulted and bashed. The numbers that Mr Wemble had in the scuffle overwhelmed Ms Bellanger and her supporters, and the two children were forcibly taken from Ms Bellanger’s care and placed separately in different motor vehicles, one driven by Mr Wemble and one driven by an accomplice. They departed the scene with the children. The children were crying as they left. At this point in time, the children spoke little of the local language and had been educated in Australia solely in English. The distress to them of that occasion must have been enormous. The distress to Ms Bellanger must have been enormous.
The Mother also alleges that the Father and Ms Paige “bribed” local authorities to issue warrants for her arrest as part of the arrangement to remove the children from her care.
THE MOTHER’S CASE
The Mother prepared and served and emailed to my chambers, but somehow did not file, a document Application-Contravention. I understood the Mother’s solicitor intended to and had attempted to file the document together with a supporting affidavit. That document[1] asserted:
[1] Marked as Exhibit M2 Proposed Contravention Application.
Part A
1.This application:
alleges that the respondent has prevented or hindered action under a recovery order in breach of section 67X(2) of the Family Law Act 1975 (Cth).
…
Part D
8.State the paragraph number of the order, bond, agreement, injunction or undertaking that you allege has been contravened.
…
Order 2 and 3 of the Final Orders dated 16 August 2021 where were agreed by consent between the First Respondent and the Applicant.
9.State precisely what the respondent dd or did not do which you allege amounts to a contravention, including the date, time and place, if applicable…
…
Date of alleged contravention Time Place
[Early] 2022 2pm [City B] Time [City B], [Country D]
Statement of the alleged contravention
The Second Respondent is the paternal grandmother. The Second Respondent [in] or about [late 2021] gave instructions whilst place on a phone loudspeaker directing the First Respondent to take the children by all means possible including abduction. She did this knowing this will be in contravention of the existing orders dated 16 August 2021.
The Second Respondent [in] or about [early] 2022 by her own admissions in her affidavit deposed on 8 April 2024 in the current court proceedings before His Honour Judge O’Shannessy, admitted receiving the children in [City B, Country D]. She knew this was in direct contravention of the existing Australian court orders dated 16 August 2021.
[In] or about [early] 2022 in [City B, Country D], the Second Respondent funded the Frist Respondent to contravene the ordered dated 16 August 2021. She aided and abetted the contravention by engaging directly or indirectly or wilfully turning a blind eye knowing the contravention of the orders dated 16 August 2021 was taking place.
The Second Respondent must be held responsible t send a deterrence to wider [Country D] Australian Community who have at times engaged in the child or children’s abduction when the children are outside the jurisdiction. The Second Respondent must be jailed if the court establish on the balance of probabilities based on the evidence that she engaged in the contravention of the orders dated 16 August 2021. This will send a strong message to the First Respondent who will most likely comply with the court orders dated 16 August 2021. The Second Respondent must not be allowed to travel overseas until such time when the First Respondent complies and delivers the children to the mother or lawyers acting for the mother who can be chosen as agent to facilitate safe passage and delivery of the children to the mother in [City F, Country E].
To hinder a recovery order is prohibited & imprisonment may follow
7Section 67X(2) & (3) of the Family Law Act 1975 (Cth) (“the Act’)[2] provide as follows:
[2] Section 67X is part of Division 8 of Part VII of the Act and thus not governed by the provisions of Division 13A.
Persons not to prevent or hinder taking of action under recovery order
…
(2)A person must not prevent or hinder the taking of the action by the person or persons authorised or directed to take the action.
(3)If a court having jurisdiction under this Part is satisfied that a person has intentionally, and without reasonable excuse, contravened subsection (2), the court may:
(a) order the person to pay a fine not exceeding 10 penalty units; or
(b)order the person to enter into a recognisance (with or without surety or security) on conditions specified by the court; or
(c)order the person to be imprisoned until he or she enters into a recognisance (with or without surety or security) on conditions specified by the court, or until the person has been imprisoned for 3 months, whichever happens first.
Hence it is clear that the law regards hindering a person enforcing a recovery order as most serious.
Contravening a parenting order includes aiding and abetting
The Mother alleges the Grandmother contravened the order prior to the operation of the “new” Division 13A and the Mother commenced the contravention proceedings making those allegations prior to the operation of the new Division 13A on 6 May 2024.
Division 13A deals with contraventions of a parenting order. An amended or new Division 13A of the Act came into operation on 6 May 2024. Because of the provisions of section 7(2)(b-e) of the Acts Interpretation Act 1901 (Cth) (‘the AIA’) and the authorities dealing with the common law presumption that legislation is not retrospective, I am satisfied that contraventions of a parenting order that were alleged to have occurred before 6 May 2024 and which were alleged in proceedings commenced prior to 6 May 2024 are governed by the “old” Division 13A not the “new” Division 13A.
Section 7 Effect of repeal or amendment of Act
No revival of other Act or part
(1)The repeal of an Act, or of a part of an Act, that repealed an Act (the old Act) or part (the old part) of an Act does not revive the old Act or old part, unless express provision is made for the revival.
No effect on previous operation of Act or part
(2)If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act ) or a part of an Act, then the repeal or amendment does not:
(a)revive anything not in force or existing at the time at which the repeal or amendment takes effect; or
(b)affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
(d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.
(emphasis added)
Allegations of continuing breach of orders that span before and after 6 May 2024 in proceedings commenced before 6 May 2024 may be governed or subject to the new Division 13A, but it is not necessary that I determine that issue.
Both the “old” Division 13A[3] and the “new” post 6 May 2024 Division 13A[4] provide that if a person has aided or abetted a contravention of the order by a person who is bound by that order has him or herself contravened the applicable parenting order.
[3] Section 70NAC(b)(ii) of the “old” or repealed Division 13A.
[4] Section 70NAC(b)(ii) of the “new” Division 13A.
The ‘old” Division 13A stipulated general obligations on people concerned with the children[5] of, or the parties to, a parenting order. See the “old” section 70NAD:
[5] The section only refers to “people” but I read down that provision as implicitly requiring a nexis or connection between the “people” or person and the subject children or those explicitly bound by, or named in, the order.
Section 70NAD Requirements taken to be included in certain orders
1.For the purpose of this division:
(a)a parenting order that deals with whom a child is to live with is taken to include a requirement that people act in accordance with section 65M in relation to the order; and
…
The now repealed or “old” Subdivision C of Division 6 of Part VII of the Act (‘the “old” Subdivision C’) dealt with obligations created by parenting orders and hindering or interfering with the exercise of a parenting order. The amending Act that replaced the old Division 13A with the new, also replaced the “old” Subdivision C and some of those sections bear reciting:
Section 65M General obligations created by parenting order tat deals with whom a child lives with
1.This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with
2.A person must not, contrary to the order:
(a) remove the child from the care of a person; or
(b) refuse or fail to deliver or return the child to a person; or
(c)interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
…
Section 65PGeneral obligations created by parenting order that allocated parental responsibility
1.This section applies to a parenting order that is in force in relation to a child to the extent to which the order allocates parental responsibility for the child to a person (the carer)
2.A person must not hinder the carer in, or prevent the carer from, discharging that responsibility.
Section 65QCourt may issue warrant for arrest of alleged offender.
1.This section applies if:
(a) a parenting order provides that:
(i) a child is to live with a person; or
(ii) a child is to spend time person; or
(iii) a child is to communicate with a person; and
(b)a court having jurisdiction under this Part is satisfied, on application by the person referred to in paragraph (1)(a), that there are reasonable grounds for believing that a person (the alleged offender) has contravened section 65M, 65N or 65NA in relation to the order; and
(c)there is an application before the court for the alleged offender to be dealt with under Division 13A for the alleged contravention; and
(d)the court is satisfied that the issue of a warrant is necessary to ensure that the alleged offender will attend before a court to be dealt with under Division 13A for the alleged contravention.
The replacement of those provisions is said[6] to be the new section 70NAC and 70NDA of the “new” Division 13A. Those provisions are as follows:
[6] See explanatory memorandum at item 18
Section 70NAC Meaning of contravene a child - related order
(1) A person contravenes a child - related order only if:
(a)the person is a person (other than a child) to whom the order applies and:
(i) the person intentionally fails to comply with the order; or
(ii)the person makes no reasonable attempt to comply with the order; or
(b)the person is not a person to whom the order applies, and the person is not a child, but:
(i)the person intentionally prevents compliance with the order by a person to whom the order applies; or
(ii)the person aids or abets a contravention of the order by a person to whom the order applies.
(Notations omitted)
(2)Without limiting subsection (1), the following table sets out circumstances in which a person contravenes a child - related order.
Circumstances in which a person contravenes a child – related order Item The order provides for … And the person intentionally … 1 with whom a child is to live either
(a) contrary to the order, removes the child from the care of another person; or
(b) contrary to the order, refuses or fails to deliver or return the child to another person.2 with whom a child is to spend time with hinders or prevents another person from spending time with the child in accordance with the order. 3 with home a child is to communicate hinders or prevents another person from communicating with the child in accordance with the order. 4 the allocation of parental responsibility for a child to another person Hinders or prevents the other person from discharging that responsibility in accordance with that order. 5 the maintenance of a child either:
(a) contrary to the order, fails to pay maintenance; or
(b) prevents another person paying maintenance in accordance with the order.…
Section 70NDA Court may issue warrant for arrest of alleged offender
Where person did not understand obligations
(1)The court may issue a warrant authorising a person to whom it is addressed to arrest the respondent if:
(a)a child - related order that is a parenting order provides that a child is to live with, spend time with or communicate with a person (the complainant); and
(b)the court is satisfied that there are reasonable grounds for believing that the respondent has contravened the order on any of the grounds mentioned in any of items 1 to 3 of the table in subsection 70NAC(2); and
(c)the issue of the warrant is necessary to ensure that the respondent will attend before the court to be dealt with under this Division for the alleged contravention.
(2)A warrant stops being in force on the date specified in the warrant (which must be no more than 6 months after the issue of the warrant).
In any event, although in less transparent terms, it is arguable that all the concepts of the “old” Subdivision C survive in the “new” Division 13A. The explanatory memorandum to the amending Act that repealed the “old” Division 13A and inserted the “new” Division 13A seems to assume that they survived. The explanatory memorandum provides as follows:
Item 18 – Subdivisions C and D of Division 6 of Part VII
128. This item repeals Subdivisions C and D of Division 6 of Part VII.
129.Consistent with the intention to simplify and streamline key parts of the Family Law Act, previous ‘Subdivision C – General obligations created by certain parenting orders’ has been consolidated into the new Divisions 13A and 14 of Part VII.
130.Sections 65M, 65N, 65NA, 65P and 65Q from previous Subdivision C of Division 6 have been redrafted and are now reflected in new sections 70NAC and 70NDA of Division 13A of Part VII (see below).
…
Item 21 – Division 13A of Part VII
New Division 13A—Orders in proceedings relating to contraventions of child-related orders
134.This item repeals existing Division 13A of Part VII and replaces the Division with a redrafted Division which is intended to be simpler and easier to apply.
135.The Division is divided into four Subdivisions, reduced from six in the Division’s current form. The four new Subdivisions are:
•Subdivision A – Preliminary
•Subdivision B – Orders relating to contraventions of child-related orders
•Subdivision C – Further provisions relating to bonds and imprisonment, and
•Subdivision D – Miscellaneous.
136.For the purposes of simplifying the structure of the Division, the Division no longer separately provides for circumstances where the court considers the contravention to be ‘less serious or ‘more serious’. Instead, the court has discretion to tailor its response to match the gravity of the contravention, while still being required to consider a number of factors in weighing up the seriousness of any given contravention, including the current and previous behaviour of the parties. This approach intends to simplify the law, while retaining the court’s discretion to consider the circumstances of each case.
137.Under the Division’s new structure, the penalties and costs provisions are centralised to improve readability. Currently these provisions are repeated throughout the Division against the different outcomes that can result from a contravention matter.
138.Each provision in the redraft is placed alongside the existing equivalent provisions (where applicable) of the Family Law Act, for ease of reference.
New Section Summary Previous provisions in the Act 70NAA Provides a simplified outline of 13A 70NAA 70NAB Outlines the objects in Division 13A N/A 70NAC Outlines the meaning of ‘to contravene’ an order and the circumstances in which a person contravenes an order 70NAC, 65M, 65N, 65NA, 65P 70NAE Provides the standard of proof to be applied in determining matters in proceedings 70NAF 70NBA Outlines when orders can be made under this Division 70NB(2) is based on definition of order under this Act affection children in section 4 70NBB The court may make a make-up time parenting order at any stage of the proceedings 70NBA 70NBC The court may vary or suspend a parenting order at any stage of the proceedings 70NBA 70NBD The court may require one or more parties to attend a post-separation parenting program, or other specified program 70NEB(1)(a), 70NED, 70NEG New Section 10PA (see item 10) Inadmissibility of evidence of disclosure by persons attending a post-separation parenting program 70NEF 70NBE The court may make, or in certain circumstances must consider making, a costs order against the complainant where the contravention allegation is not substantiated or against the respondent where a contravention is established without reasonable excuse 70NCA, 70NCB, 70NDC, 70NEB(1)(f) and 70NEB(1)(g), 70NFB(2)(g) and 70NFB(2)(h) 70NBF Outlines orders the court can make where a contravention is established without a reasonable excuse 70NEB(1), 70NFB(2) Removed Provisions relating to the making, enforcement, variation and discharge of community service orders 70NFB(2)(a), 70NFC, 70NFD, 70NFF 70NCA Provides conditions for the court to require a person to enter into a bond 70NEC, 70NFE 70NCB Outlines the procedure for the court to enforce a bond 70NECA 70NCC Provides conditions for the court to make an order imposing a sentence of imprisonment 70NFG 70NCD Outlines the powers of the court in relation to the imprisoned person, including release and suspension of sentence 70NFG 70NCE Outlines the rules relating to contravention of child maintenance orders and child support 70NFB(4) 70NDA Outlines the circumstances where the court may issue a warrant for the arrest of an alleged offender 65Q 70NDB Outlines the relationship between Division 13A and other laws 70NFH 70NDC Nothing in this Division limits the operation of section 105, which dals with enforcement generally 70NFJ
It is difficult to read into the “new” Division 13A an intention of Parliament to permit behaviour, that was prohibited under the “old” Division 13A and Subdivision C to be permitted after 6 May 2024.
The offence retaining a child outside Australia
Although not raised expressly by the Mother, her allegations raise section 65YA of the Act. Section 65YA, being part of Subdivision E of Division 6 of Part VII of the Act, survives unamended by the amending Act (Act No 87 of 2023) that repealed the old Division 13A and inserted the new.
Section 65YA provides as follows:
Section 65YA Obligations if a certain parenting orders have been made: retaining a child outside Australia
(1)A person commits an offence if:
(a)a parenting order to which this Subdivision applies is in force in relation to a child; and
(b)the child has been taken or sent from Australia to a place outside Australia, by or on behalf of a party to the proceedings in which the parenting order was made:
(i)with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or
(ii)in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time, or after, the parenting order was made; and
(c)the person retains the child outside Australia otherwise than in accordance with a consent or order of a kind mentioned in paragraph (b) (whether or not the person took or sent the child as mentioned in that paragraph); and
(d) the person:
(i)was a party to the proceedings in which the parenting order was made; or
(ii)is retaining the child on behalf of, or at the request of, such a party.
Note:The ancillary offence provisions of the Criminal Code, including section 11.1 (attempt), apply in relation to the offence created by this section.
Penalty:Imprisonment for 3 years.
Exception
(2)Subsection (1) does not apply if:
(a)the person (whether or not the person was the party to the proceedings) retains the child as mentioned in paragraph (1)(c) because the person believes the conduct is necessary to prevent family violence; and
(b)the conduct is reasonable in the circumstances as the person perceives them.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Range of penalties including imprisonment available
The “old” Division 13A[7] and the “new” Division 13A[8], in a different language, provide that a person can be sentenced to imprisonment for contravention (that includes by aiding and abetting) of a parenting order. The “old” Division 13A[9] and the “new” Division 13A[10], in a different language, provide that a person can only be sentenced to imprisonment if the court is satisfied beyond reasonable doubt that the grounds for so ordering exist.
[7] Sections 70NBA(2), 70NFB(2) & 70NFG on the “old” Division 13A.
[8] Sections 70NBF(d)(ii), 70NCC & 70NCD of the “new” Division 13A.
[9] Section 70NAF(3) of the old Division 13A.
[10] Section 70NBF(d)(ii).
Apart from Division 13A an offence under section 65YA provides for a penalty of imprisonment.
Application of The Criminal Code Act 1995 (Cth)
Although not raised by the Mother, the alleged circumstances raise the application of the Commonwealth Criminal Code. By section 7A of the Act[11], Chapter 2 of The Criminal Code Act 1995 (Cth) (‘the Cth Criminal Code’) applies to offences under the Family Law Act 1975 (Cth).Section 11.2(1)-(3) provides as follows:
[11] Family Law Act 1975 (Cth)
11.2 Complicity and common purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
(2) For the person to be guilty:
(a)the person’s conduct must have in fact aided, abetted, counselled or procured the commission of the offence by the other person; and
(b) the offence must have been committed by the other person.
(3) For the person to be guilty, the person must have intended that:
(a)his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
(b)his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
Section 15.4(1) of the Cth Criminal Code clearly displaces the common law presumption that laws of Parliament are not intended to have extra territorial effect. Section 15.4(1) of the Cth Criminal Code provides:
15.4 Extended Geographical Jurisdiction Category D
(1)If a law of the Commonwealth provides that this section applies to a particular offence, the offence applies:
(a)whether or not the conduct constituting the alleged offence occurs in Australia; and
(b)whether or not a result of the conduct constituting the alleged offence occurs in Australia.
Hence it is clear that the law regards retaining a child in a foreign country contrary to a parenting order and/or aiding and abetting the contravention of a parenting order, depending on the circumstances, as potentially most serious. It is clear that the law regards aiding and abetting the contravention of a parenting order and or interfering with the exercise of parenting obligations as, depending on the circumstances, most serious and potentially warranting serious penalty including imprisonment.
It is clear that the law regards a person who aids, abets, counsels or procures an offence under the Act as, depending on the circumstances, most serious and potentially warranting serious penalty including imprisonment.
In this case the Grandmother asserts she has not committed the acts alleged (that may constitute an offence under the Act) and points to matters that she says undermine the reliability of the evidence of the person who makes the allegations.
The Mother’s case, as I understood it, boiled down to the following propositions:
·The extant final order that the children live with the Mother should be acknowledged.
·The Father had breached that order when he abducted the children and/or prevented them living with the Mother.
·She alleged that the Grandmother not only supported the Father, but had aided and abetted him breach the order and had aided and abetted him in his avoidance of enforcement of the order being the recovery order.
·That the allegations against the Grandmother were very serious and were now pursued in a contravention application where imprisonment was possible.
·There was a real likelihood of the Grandmother leaving Australia to avoid the contravention application sanctions.
·If the Grandmother travelled to Country D she would support the Father in the continuing breach of the orders.
·The continuation of the injunction and Watch list order was necessary to ensure the Grandmother attended the contravention hearing and to militate against her continuing to aid and abet the Father’s breach of the final orders.
·The injunction and Watchlist order was necessary as it promoted the prospect of the return of the children to the Mother’s care.
·The Father had caused the Mother’s solicitor to be unlawfully threatened that harm would come to him if he continued to act for the Mother.
·That after the recovery order was made and provided by email to the Father, the Father removed himself and the children to another part of Country D so as to avoid any authority that might have assisted the execution of the recovery order[12].
[12] TP41 line 41-45.
A right of freedom of movement in section 92?
The Mother’s submissions acknowledged the importance of freedom of movement and referred to section 92 of the Australian Constitution as, perhaps, providing for the general freedom of movement of citizens. I understood the solicitor was acknowledging the observations of Gaudron J in AMS v AIF (1999) FLC 92-852 (‘AMS v AIF’)at [96]-[103] and the interpretation that, notwithstanding the introductory words of the section relating to trade and commerce, that intercourse, and hence movement of individuals, between states should be absolutely free. However in Gerner and Anor v Victoria [2020] HCA 48, (2020) ALR 394 (‘Gerner’), the High Court found that implied freedom of movement is not implicit in section 92 of the Constitution, albeit in a case concerning intrastate freedom of movement of individuals to attend Mr Gerner’s hotel during covid lockdown. Hence, I infer, the High Court found section 92 of the Constitution did not guarantee the right to go to the pub. It is clear enough, in light of Gerner[13] that the section 92 references or passages in AMS v AIF dealing with freedom of movement are inconsistent with the ratio of Gerner.
[13] See Gerner at [5], [6],[10],[12],[27] 7 [28].
However the right of freedom of movement within Australia, and to leave Australia, was common ground between the parties and Gerner at [10], adopting the statement of the Supreme Court of Victoria, provides a solid basis for that right. There the High Court observed:
[10]At common law individuals may move about as they see fit. But that freedom is subject to the laws of the land…
I am satisfied that would include the right to leave Australia, but subject to the laws of the land. In this case subject to the Family Law Act 1975 (Cth).
The Mother also asserted that she would abandon the contravention application if the children returned to the Mother’s care.
THE GRANDMOTHER’S CASE
The Grandmother denies the Mother’s allegations and describes her circumstances as follows:
2.As to paragraph 22, 23, 24, 25 and 28 I say that I was not present at the meeting[14] and did not participate by phoning anyone at the meeting.
[14] The 17 December 2021 meeting.
3.As to paragraph 40 I say that I was not present in [City B] [in early] 2022. I have seen the video, and it depicts the maternal grandfather blessing the children for their new lives with their father.
4.As to paragraph 44 I say that I do not control everything in my family. [Country D] customs are for the male elders of the family to lead the younger members and women. When my husband died, his oldest brother became responsible for the children in my family. I was present at the meeting to negotiate a dowry in 2010 but my husband's brother had the authority to agree to the marriage. I could not have negotiated with [Ms Bellanger]’s family without my male relatives.
5.In [Country D] the men hold all the power and responsibility of women. Ultimate decision makings within the family unit or at the clan, sub-clan and tribal level are made by men in authority whether it is the husband as the head of family or elders designated as tribal [leader].
6.As to paragraph 45 I say that I did not fund any of [Mr Wemble]’s legal proceedings and I did not bribe any authorities. I understand [Mr Wemble] sold some [animals] to fund his legal proceedings. I did not pay for [Mr Wemble] to fly from [City B] to [City N] and back and forth. I have never been employed since arriving in Australia and have been on Centrelink benefits residing at [in] Housing Commission since 2010.
7.I do not operate an email account; I do not know how to read or write or speak English and I require the assistance of my daughters for a lot of "modern' tasks.
8.I arrived in [City N], [Country D in] 2022.
9.[In early] 2022, I travelled to [City O] with my daughter [Ms P].
…
13.In the first week of [early] 2022, I travelled from [City B] to [City O] and then [City O] to [City N].
…
15.I am aware that the changeover of the Children in [Country D] occurred at the Local Police station, and I am not aware of any violence taking place during the exchange. I never participated in the exchange of the children and did not encounter [Ms Bellanger] during my entire time in [Country D].
16.[Mr Wemble] is now living in [Town Q], capital city of [C] State, [Country D]. The houses in that [town] do not have addresses.
17.[Mr Wemble] is not on the run or hiding because he is not in breach of any law or custom in [Country D] and is working for the [C] State government.
18.Almost all children in [Country D] from separated families live with their father's family.
It is clear the Grandmother is a resident of Australia and has been so since 1999. The Grandmother provides her understanding of further history as follows:
16.In 2019, [Ms Bellanger] travelled to [City B, Country D]. As far as I am aware, there [Ms Bellanger] and my son commenced divorce proceedings in [City B, Country D]. This case was finalised [in early] 2019. There was a clause in the divorce final decision that the children stay with their mother until they turn 18 years of age.
17.In 2021 my son was served with family court papers in June of the Affidavit seal in April 2021 via email. My children were able to find the lawyer and fund his case with their savings[15].
[15] This was the case where the Mother merely sought the Father’s signing of a passport application be dispensed with and the Father opposed this on the ground the Mother may not return the children to Australia that in ended in final consent orders that the children live with the Mother (who lived in Australia at all material times) on 16 August 2021.
18.My second youngest daughter [Ms P] was working part-time and assisted my son with the Court proceedings. My son was in [City B, Country D] at the time and [Ms P] would facilitate correspondence between my son and his lawyers.
19.Shortly after the family court parenting proceeding was finalized my daughter [Ms P] started experiencing nightmares and would hear voices. She was later hospitalized and diagnosed with [a mental health condition]. From there I started planning her trip to [Country D] for a change of environment once she's released from the hospital.
20.I booked plane tickets for me and [Ms P] [in late] 2021 to travel [in early] 2022….
21.I was not aware of [Ms Bellanger] traveling with the boys to [Country D] until around [late] 2021. My son told me that [Ms Bellanger] and the children had arrived in [City N]. My son said he was only informed by [Ms Bellanger]'s relative. He said [Ms Bellanger] did not inform him about her travel with the children to [Country D] as required by the 16/08/2021 court orders made by consent.
22.As far as I am aware, my son travelled to [City N] to see the boys [in late] 2021. None of us were in [City N] as she claimed. My daughter and I were still in Australia. I was told there were several verbal family meetings in [City N] between [Wemble] family elders and [Bellanger] family elders. My son expressed his desire to spend time with his children while they were there. It was decided once [Ms Bellanger] goes to [City B] she will allow the boys to spend time with their father for the whole day.
…
24.When [Ms Bellanger] reached [City B], my son said he attempted to pick the children up early in the morning as agreed in the family meeting that occurred in [City N]. However, he only managed to pick them up in the afternoon as the in-laws and [Ms Bellanger] were evading him. He said the in-laws were disrespectful and demanded he return the children as soon as possible. He said [Ms Bellanger]'s and some of her family members' behaviours were of concern as he felt they were actively trying to cut him out of children's lives. As a result of that my son opened a case [in early] 2022 against [Ms Bellanger] in [City B].
…
27.[In early 2022], [Ms Bellanger] won the case and my son handed over the boys to [Ms Bellanger] that day. There was no fighting as [Ms Bellanger] stated in her affidavit, paragraphs 9 to 11. Armed police were present and any aggression from my son's part would have resulted in serious injuries or death. My son and others were understandably upset, tensions were high, but no fighting occurred. I was told [Ms Bellanger] and her supporters equipped themselves with armed cars. The ruling went against [local] customary Law and my son accepted the ruling, nonetheless. I was never in the Court proceedings and in our customary court proceedings, I am not a party to the proceedings and myself and my daughter are not required to attend the court proceedings. I refute [Ms Bellanger]'s allegations that I assaulted her or that she was assaulted by my son and my son's family during the court proceedings.
28.[Ms Bellanger] was awarded custody of the children because of the early orders made in 2019 granting [Ms Bellanger] full custody of the children until the age of 18 years of age. The court stated that for my son to be awarded custody of the children, he must first appeal against the decision made in 2019. This appeal was out of time and [in early] 2022, my son opened another case to get his dowry back and placed [Ms Bellanger]'s father under arrest. [Ms Bellanger]'s father was released from custody after [Ms Bellanger]'s family sat down and agreed to return the children to my son.
…
30.I believe [Ms Bellanger] added me to this case in Australia in retaliation for her father's arrest. She stated that adding me will get my son to respond. In the email to the Australian Embassy, she stated that "I prefer his mother to be answerable to this because he might choose to ignore any contact made to him by any law enforcement". She claimed that I can allocate the children, [Ms Bellanger] knows where my son and children are. My son is not hiding, the children were handed to him through the decision made by [Ms Bellanger] and her family members… This is the truth, there was no abduction of children. If she wants to go back on the decision she made with her family, she does not have to lie and make false allegations against me and my children.
31.[In early] 2022 I travelled with my daughter, 2 granddaughters and my sister-in-law to [City O]. I did not travel back to [City B] until [early] 2022 because one of my granddaughters were sick and stayed in [City O] for her treatment. I heard that the children were brought back to [City B] to my son's house, and that the decision was made by [Ms Bellanger] and family elders. The date ([early] 2022) [Ms Bellanger] claimed that the children were forcibly removed from her care is wrong. The video was taken [two days earlier] which was the date that her father ([Mr R]), her elder brother ([Mr S]) and their [leader Mr T] brought the children to my son’s home…
32.There was no court hearing [on the date claimed].
Hence it is clear that the Grandmother denies planning to, or actually, interfering with or hindering, or aiding and abetting a breach of, the orders of 16 August 2021 and/or the recovery order made on 18 September 2023 A possible inference that may be available is that, whether or not she has hindered or interfered with the orders of 16 August 2021 or the recovery order, and whether or not she has any power or influence over her son (the Father). The Grandmother supports or agrees that the children should continue to live with the Father in Country D and not with the Mother in Australia in accordance with the final orders.
The Grandmother points to the Mother’s email of April 2023[16] and has put in evidence documents from Country D that she says should cast real doubt on the Mother’s account of a forcible removal of the children from the Mother’s care (while on holiday in Country D) and that support her contention that the children had been “handed over” by agreement between the families.
[16] To the Australian Consulate at City U and annexed to the Mother’s affidavit filed 14 September 2023 at pages 15 & 16 of 18 and in part recited later in these reasons.
In the September 2023 proceedings the Mother gave evidence of attending a court hearing about a return of dowry claim against her father, in early 2022 in Country D, when the children were forcibly removed from her and taken away, crying, in motor vehicles and she has never seen them again. The Grandmother’s account appears to be:
·That the children had lived with the Mother in Australia since 2014 and had not seen or spoken with the Father since 2014, until late 2021 (common ground they had one day with him) and some few days in early 2021 after the Mother was arrested on the Father’s application; and
·That in early 2022, pending the determination of the Father’s “custody” of the children claim (commenced in early 2022), because the Mother attempted to flee the jurisdiction, was arrested and imprisoned for some days, but the local court dismissed the Father’s case a month later and the children were ordered to continue to live with the Mother; and
·In the context of a return of dowry claim, where the Mother’s father had been imprisoned for a short time, there was a “between families” agreement that the children would be handed over to live with the Father in Country D thereafter and that such an event was legal and sanctioned by the local authorities; and
·She had no role in the decisions of the Father or the local authorities in those events, nor could she have had because such decisions can only be made by men in Country D; and
·She should be free to travel to Country D as she wishes and she has an important cultural obligation to travel there to support her daughter there in the last stages of her daughter’s pregnancy, should her daughter become pregnant.
·The contravention application should be summarily dismissed when that application could be dealt with.
At annexure MSP6 of the Grandmother’s affidavit filed 8 April 2024 she shows what purports to be a screen shot of text messages from the Father’s sister’s (Ms V’s) mobile phone that shows the first image or frame of a video that is alleged to be the children together with heads bowed in the presence of the Mother’s father and apparently recorded[17] in early 2022, and the Grandmother asserts:
31.… The video was taken [in early] 2022, which was the date that her father ([Mr R]), her elder brother ([Mr S]) and their [leader Mr T] brough the children to my son’s home.
[17] Or at least sent from the mobile telephone of the Father’s sister
The Mother asserted in her affidavit filed 27 April 2024 (in reply to the Grandmother’s affidavit) the following:
40.When all these chaos were happening, my father was asked to bless the children. This is a traditional custom where an elder takes water and spray the water and do some customary prayers. This is a very old cultural blessing and we have been blessed using this cultural water spraying blessing many times. All [Country D people] who meet their elders are familiar with this customary practice. My father was videoed [in early] 2022 on the basis that he was blessing my children. This video was taken by the first respondent and the second respondent is now saying that it was me handing over the children to him. This is not correct.
41.Let us say for a moment that my father and I handed the children to them based on the second respondent narrative in her affidavit on 8 April 2024, why are they not returning me my children. The second respondent has known for some time now that I missed my children. I need them to have better medical care services, good health, and good education in Australia. The second respondent has not intervened. Let us say for argument’s sake that I did give the children and I now have a change of mind and heart to want my children back, why are they not giving them back to me?
42.My father has not ever consented to children being removed from me. Even when he was arrested at very old age, it was my relatives and other family members who were begging me to give my children as a ransom so that my father cannot die. It was also to fetch a dowry as the respondents were very hostile and not compromising. It was also aimed to be a short term so that he's paid the dowry. So, this video taken [in early] 2022 does not really say that my father handed over the children as the second respondent alleged.
43.We have never ever consented for the children being handed over to the first and the second respondent. The children were forcefully removed from me, and I did not accept it. My family did not also agree to it.
The Mother does not appear to have previously addressed the “video” or the events its depicts or any events of early 2022 in material filed previously.
For the purpose of the September 2023 hearing before me and on this hearing, the Mother had asserted that the removal of the children from her care occurred in early 2022[18] and that she did not get notice of any court case about the children in early 2022 and that she did not attend such a court case. The Father had sent an email to the Mother’s solicitor back on 23 June 2023 that included the assertion that:
“Handover of the children was done [in early] 2022 by the [City B] High Court Judge”
[18] [10] of affidavit filed 22 May 2023, [37] of affidavit filed 27 April 2024 & TP 23 oral evidence of 18.9.2022.
Hence, in different circumstances, the parties allege the children were “handed over” in early 2022 (the Grandmother’s account), or forcibly removed in early 2022 (the Mother’s account) and “handed over” in early 2022 at the County Court (the Father and the Grandmother’s account).
It is alleged there was no court case in early 2022 as asserted by the Mother and is corroborated by [32] recited above of the Grandmother’s affidavit, yet a document purporting to be a legal document records the “hand over” of the children in early 2022 (recited below).
The Grandmother annexed to her affidavit of 8 April 2024 a document consistent with the Father’s assertion in the part of the email recited above. Annexure MSP7[19] at page 23 of 25 purports to be a statement on official letter head dated early 2022 as follows:
[19] The parties proceeded on the basis that annexures to affidavits had been admitted into evidence and I accepted that position.
[Country D] The Judiciary
[C State]
The High Court
[City B] County
Date [early] 2022
To: Who it may concern
SUBJECT HANDING OVER OF TWO CHILDREN TO THEIR FATHER
This is to certify that the two children [names inserted] are handed over to their father, [Mr Wemble] by [Mr R] and his daughter [Ms Bellanger], the mother of the two children.
Therefore, the handing over of the two children to their father is done before me county court judge this Day [early] 2022
[name of Judge inserted]
Judge
[City B] Court
(spelling as in the original)
On this interim hearing, I repeat I am unable to determine the events of the period early 2022.
The Grandmother has produced two further documents that (it appears undisputed or common ground) are actually “legal” documents that she asserts corroborate her account of events.
The first, MSP4 at page 17 of 25 to her affidavit filed 8 April 2024, although a poor copy including some barely legible and some illegible handwriting, is dated early 2022 and, although a curious document, appears to say as follows:
“Illegible”
Ministry of Justice
[C State], [City B]
..(illegible) attorney
[City B] (WARRANT OF ARREST)
(See section (75) code of criminal procedure)
Act (2008)
To any Police Man/Woman
Whereas the Accused person [Mr R] 2. [Ms Bellenger] 3.[Mr S] (illiegible) 4. (illegible) [Bellanger][20]
[20] The four names are in handwriting
Has been charged with the offence of breach trust[21] under section 348[22] O
[21] The words in italics are in hand writing.
[22] The numbers in italics are in handwriting.
The penal code Act 2008 case Nr 2[23] at [City B] police station. Yo
are hereby directed to arrest him/her and produce him/her before investigate
(illegible handwriting) at [City B][24] police station.
Issued in this day of: [early] 2022
Name of the prosecutor (illegible handwriting)
Signature (illegible)
NB
In case of outside local limit jurisdiction.
The directives of the (illegible)
(spelling and punctuation as in the annexure [MSP] 4)
[23] The number 2 is in handwriting.
[24] In handwriting.
It is common ground that the Mother was arrested in or about early 2022. I am asked to infer she was arrested on the authority of this document.
The second, MSP5 at page 19 of 25 to the Grandmother’s affidavit filed 8 April 2024, although is dated 27 January 2022 and appears to say as follows:
[COUNTRY D]
THE JUDICIARY
City B High Court
Date [early] 2022
To: Criminal Investigation Department [City N] Airport Administration
SUBJECT: BANNING TRAVELING OF DEBTOR-[MS BELLANGER]
The above mentioned person is debtor in execution no-[…]2022 in order to hand over two children namely [X] and [Y] to their father creditor [Mr Wemble] on […] 2022 and it has drawn to my knowledge that she escaped with children from [City B] to [City N] and may be proceed to Australia within these days.
Therefore, in accordance to section 224 of chapter VI of the civil procedure Act 2007, you are requested not to allow her departing the territory of [Country D] except by leave of this court or if she hand you over these two children.
(A stamp affixed)
Thanks,
Judge (named)
High court Judge,
[C] State/[City B]
(spelling and highlighting as in the annexure)
The Mother had annexed to an affidavit (filed on 14 September 2023) an email she had sent to the Australian Embassy back in April 2023. Relevant passages included the following:
…
When I arrived to the [town] where he lived and I found out he already prepared on how he would ambushed us, his planned of abducting they kids from me. He immediately sent policemen to arrest me and threw me behind bars and I stayed there for days, as for they kids he included them on arrest, through his plan was take them with him afterwards.
I had been in jailed for that period and my family members (brother came and bailed me out and he was kids already) he bribed all they police to keep me in jailed as Long as he wanted. On this process his family members at that point his mother and sister had already arrived from Australia in [early] 2022 and they kids were taken out of my care.
…to stay awhile linger with rest f my family before my travel back to Australia, it was all in vain, kids were taken out of my hands and never got a chance to see them till now:
They were taken away [in early] 2022, I only asked people living in the area of their wellbeing, take pictures and sent them to me.
Though I tried to battled the case in court and I was tricked by customary police and laws orders to only give the kids to him for a few weeks and he might return them to me since the environment was not conducive for children he might compromised they situations and returned the kids to between environments because they kids might not get to adapt to the harsh and unpredictable weather they were exposed too. I knew he wouldn’t do that’s but no one knew him better than I do, kids were also excited to see their dad for first time after almost 8 years. So I gave it a chance but that’s how they kids ended up at his care till now.
(Grammatical errors are unchanged)
The Grandmother, in the hearing before me, relied upon the last paragraph reproduced above as demonstrating the falsehood of the Mother’s “the children were removed by force” version and on the face of the last part, there is some force in that submission.
The Grandmother submitted:
MR TESORIERO: I’m assuming – at a normal directions hearing in the contravention list, we would look at the application and see if it’s technically sufficient to go to another hearing. First of all, I’m not aware of any authority in which a person who is not bound by orders can be the subject of a contravention of those orders. Secondly, an Act applies – it seems there are two counts alleged and both counts would suffer from the same problem: they’re alleging a breach of an order by a party who’s not bound by that order. If we look at count 1, there is no alleged order being breached on page 3 of that document, the final box underneath number 6.
I will refer to this as the ‘we’re not a party to the orders submission’.
The Grandmother asserted that the injunction should not continue on a number of basis including the following discussed below.
Counsel for the Grandmother asserted that as the Mother had “engaged” in proceedings in Country D this court was the “inappropriate forum” to deal with the controversy and, the 3 May 2024 hearing being a directions hearing, that would be agitated on the return of the matter.
Counsel submitted that the injunction and watchlist order should be discharged pending the further hearing because, the Grandmother had filed two affidavits detailing her understanding of the children’s welfare and whereabouts, the purpose of the injunction and watch list order had been achieved.
Counsel further submitted that:
MR TESORIERO: In relation to the other concerns your Honour elucidates in paragraph 13, the risk of harm to the children remaining in [Country D], there is no connection between maintaining the watchlist order and the risk of harm – the risk of the children being at harm by remaining in [Country D]. The children were in [Country D] prior to your Honour making the watchlist order, and the children have remained in [Country D] while the watchlist order has been in operation. The effect of the watchlist order has been zero on whether the children continue to reside in [Country D].
…
MR TESORIERO: Thank you, your Honour. And that is where I say it’s difficult to see how your Honour can maintain the watch list, because how is it necessary to protect these children? It has no bearing on whether or not they’re returned to Australia by the husband father - - -
…
MR TESORIERO: He – despite the watch list order, he remains able to remain in [Country D]. On the mother’s own evidence, which we deny, she is providing him financial support from here, so the watch list order isn’t impeding - - -
…
MR TESORIERO: The mother’s allegation is that she is providing financial support to the husband from Australia. The watch list has zero bearing on her ability to do that, which is denied.
I will refer to this as the ‘no connection submission’.
Counsel further submitted that:
MR TESORIERO: I would refer your Honour to a decision …Gilles and Irby, … [2016] FamCAFC 13…a decision of Ryan, Murphy and Austin, paragraph 46 in particular, where it refers to discussions in Sampson and AMS – refers to the injunction being:
…”no more than is necessary to secure the … interests of a child” noting that “the proper exercise of such … power is likely to be rare”.
And the discussion in Sampson & Hartnett refers to the requirement for a connection between the injunction and a parenting order. The parenting order your Honour has seen fit to make thus far in these proceedings is a recovery order. It’s difficult or – in my submission, in light of the evidence now before you, it cannot be maintained that there is a sufficient connection between the watchlist order and the recovery order for that to overcome the fundamental right of my client to freedom of movement.
I will refer to this as the ‘insufficient connection submission’.
Counsel further submitted that:
MR TESORIERO: Yes, your Honour. I make my submissions in relation to my client’s right to a freedom of movement in – it’s a matter which your Honour must weigh and balance against the utility of making a watchlist order to secure – that is – in my submission, has only a vague or tenuous connection to the location – sorry, the recovery order. So I accept that my client’s right to movement is qualified….As your Honour has identified, there are potentially – well, I would put it higher than potentially – likely to be important reasons to my client and her family that she travel to [Country D].
…
MR TESORIERO: But those are my submissions in reply, your Honour. Very reluctant to return to the issue of the relevance of the contravention, the watchlist, and the other matters, given how badly that went for me the first time. But I suppose my submission in relation to that is it would only be in an extreme exercise of caution that your Honour could really be concerned that [Ms Paige] is going to flee a country where she has lived since 2010, at least, remain out of a country where her daughters live because there’s a remote possibility that she may be subject to a contravention application where she has aided and abetted a party. It’s just a long bow to draw, your Honour, to interfere with what is a right, which my friend has referred to, contained in the Constitution subject to the law of the land, but is still a 5 right that we all have for our freedom of movement.
I will refer to this as the ‘tenuous connection outweighed by right to freedom of movement submission’.
Counsel further submitted that:
MR TESORIERO: - - - your Honour. There’s no evidence that the watch list order is necessary for [Ms Paige] to appear in these proceedings. The current state of the evidence is she was out of the country when she was served, so I don’t see how it can be made out that she is only appearing because – here today because of the watch list order.
HIS HONOUR: Tell me, does the evidence disclose whether or not she was here on the day I heard the application for the recovery order?...
MR TESORIERO: …According to her affidavit, she was in [Country D late] last year.
…
MR TESORIERO: …There’s no evidence that [the Grandmother] has evaded attending court when she has been required to.
…
I will refer to this as the ‘orders unnecessary for the Grandmother to appear submission’.
Counsel also submitted that the injunction and watch list order was “completely irrelevant” as to whether the Grandmother went to gaol and that the assertion that the Grandmother would leave the jurisdiction rather than face the contravention application was “completely irrelevant” and that for the (served) contravention application:
MR TESORIERO: for it to be relevant – okay, your Honour. For it to be relevant, your Honour would have to be satisfied that absent the watchlist order my client is going to fly out of Australia tomorrow to avoid going to jail on a contravention application.
Counsel further submitted that the Mother’s evidence was unreliable and pointed to a number of aspects including;
·the video[25] of the events of early 2022, said to contradict the Mother’s account; and
·the Mother correcting her earlier assertion that the Grandmother was present in Country D in late 2021, when it is clear from her passport she wasn’t, where she asserts the Grandmother attended a key meeting in Country D in late 2021 by telephone (see [27] of her affidavit filed 27 April 2024); and
·the email to the Australian Embassy recited earlier;
[25] A still from the video is in evidence but the video was not played to the court as there is no expert or agreed translation of the Country D conversation recorded. It is common ground that the solicitors for the parties will attempt to provide an agreed translation of the video with the Mother’s solicitors having the first draft of translation.
Hence, it was submitted, there was not, in substance, a serious issue to be tried when the matter returned.
The Grandmother also indicated that she would consent to an order that, in the event the Mother was not successful in maintaining the injunction and Watch list order, she would consent to an order or make an undertaking that she would comply with the existing orders in the event she travelled overseas.
THE FATHER’S CASE
The Father appeared by telephone (I understood from Country D) on an inconsistent and difficult connection. He had not filed any material. He had been emailed the documents relied on by the Mother. On a number of occasions the telephone connection was lost and the hearing was paused until connection could be regained. After some time all connection was lost. After the hearing he emailed further documents to my chambers. I have marked those documents exhibit F1 and take the assertions therein into account and treat them as written submissions.
The Father told me, and I accept that he had been told of the hearing by the Grandmother and that he had received and read all of the documents. Notwithstanding the Father is highly educated[26], I provided assistance to the Father as to procedure and rights, including the right not to incriminate himself.
[26] The Father told me and I accept he has completed post-graduate studies.
But it was clear he sought that the injunction and watchlist order concerning his Mother be discharged and that she be released as a party in the proceedings and that he submitted any order should not relate to or concern his mother, the Grandmother.
The Father submitted:
[MR WEMBLE]: Yes ..... this case the second respondent should be removed, because this case is between me and my ex-wife.
HIS HONOUR: Yes.
[MR WEMBLE]: So my mother should be removed because when she was in Australia, we was having none of ..... with my children and also my wife because we ..... people know that. So the complication that’s complicating the ..... is that ..... so secondly, my ex-wife has already moved on and is already having children with another man in [Country W]. Thirdly, this woman is still owing over 200 [animals]. We never retrieved anything. She is lying on that thing that all the [animals] had been returned back. We are a proud family. We do not get anything from [Ms Bellanger]’s family. They still 5 have our dowry, and we are proud to have children, and these children will one day go back to Australia. They were born there, and I ..... there, and my family there, and they will be ..... going back to Australia. So these kids should be treated – it’s between me and my wife and none of my mother to be in that.
HIS HONOUR: All right. Mr – thank you, [MR WEMBLE]. I understand those four points that you make. When do you propose that the boys will be returned to be Australia? When you say, “One day they will go back to Australia,” when is that, [MR WEMBLE]?
[MR WEMBLE]: ..... any time when I like it.
HIS HONOUR: Any time soon?
[MR WEMBLE]: Well ..... otherwise ..... yes, any time. They can talk you – they can talk to you, but because ..... or otherwise I would have connected - - -
It is possible, but not certain, that the Father submitted that he was not happy living in Country D and that he intended that he and the children would, one day, return to Australia. I make no finding as to that.
NEED FOR AN ICL
Apart from the two versions (of the Mother on the one hand and the Father and the Grandmother on the other);
·the allegations of patriarchal authority,
·the nature of the documents said to be authority to arrest the Mother and the children,
·the common ground that the Father was able to have the Mother’s elderly father arrested or imprisoned over the dowry paid a decade earlier,
·the allegation that local or customary law would have the children living with their father,
·the common ground or undisputed evidence that the Mother had been the sole carer to the children since 2014,
·the Mother’s apparent affection for her father (demonstrated by the trouble in getting passports to visit him),
·the allegation of the Mother attempting to flee the City B area to Australia with the children,
·the passage in the Mother’s email to the Australian Embassy dated April 2023 recited above,
All combine to raise the possibility that, whether or not the Mother was subject to violence when the children were removed or handed over, she was herself subject to, and overborn by, pressure or persuasion from her family, to hand over the children to the Father, intending that to be either temporary or indefinite.
Neither parent or the Grandmother assert this and it may be the independence of an Independent Childrens lawyer appointed pursuant to the Act would assist illumination of these events. The parties did not oppose the appointment of an ICL.
AN INTERIM HEARING
I am satisfied that the principles of settled law as asserted at [78] and [82] of Goode and Goode (2006) FLC 93-286 continues to apply as I set out in Whitehall & Talaska [2024] FedCFamC2F 768.
35.On an interim hearing the law is clear enough notwithstanding the different provisions of Part VII of the Act that apply from 6 May 2024. That Part VII, including section 60CC, has been amended and section 65DAA repealed (from 6 May 2024) does not change the law applicable to how an interim or emergency hearing is to proceed.
36With necessary amendments to accommodate the changes to Part VII of the Act to operate from 6 May 2024, the procedure on an interim hearing should still be in accordance with Goode & Goode as follows:
74.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child's best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC…
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)-(j)(Theses refer to the presumption of the now repealed section 65DAA and so no longer apply.
I am also guided by Eaby & Speelman (2015) FLC 93-654 at paragraph [18].
18.Her Honour early in her reasons referred to Goode & Goode for guidance as to the correct approach to the determination of interim parenting proceedings. It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts. Rather, the proper approach to contentious matters of fact in the determination of interim hearings is as explained in Marvel v Marvel, at [122] and [123], as follows:
[122] In SS v AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
[88] In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at [100] their Honours amplified their comments and said:
[100] The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Common Ground events
It does not appear disputed that:
·the children had lived all (or almost all) their lives in Australia in the sole care of the Mother; and
·that the children are Australian citizens; and
·the children had not spent any time or had any communication with the Father for about seven (7) years (until the Mother and the children travelled to Country D in late 2021); and
·that the Mother took the children from Australia where they had lived all their lives to Country D for a holiday to visit her father, their grandfather; and
·that at the time the children went into the care of the Father in Country D, at ages almost 9 & 10 years, having grown up in Australia, they did not speak the local language; and
·that shortly before the children came into the care of the Father in Country D the Mother had been imprisoned in Country D in relation to legal proceedings the Father had brought against her relating to the children; and
·that shortly before the children came into the care of the Father in Country D in 2022, the Mother’s father had been imprisoned in Country D in relation to legal proceedings the Father had brought against him relating the return of dowry paid in animals in about 2011; and
·the children have not spent any time with the Mother since coming into the care of the Father in Country D.
Notwithstanding these common ground events, the competing accounts, the Mother’s email to the embassy and the (said to be) legal documents from Country D mean that, on this interim hearing on the papers, I cannot determine just what happened to cause the children to be moved into the care of the Father in Country D in early 2022. Apart from the difficult forensic practicalities of attempting to do so, the law says that I should not do so on this interim hearing.
Power to make the injunction and Watch list orders.
Section 68B of the Act provides as follows:
Section 68B Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
In addition to section 68B the Court has the power provided at section 114(3) of the Act and that provides as follows:
Section 114 Injunctions
…
3.A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Conclusion
On this interim hearing, I do not accept any parties’ account of controversial events. I am dealing with risk of events occurring or not occurring. I proceed on the basis that it is necessary for the Mother to satisfy me that the injunctions (including the watchlist order) should be made or continue. The burden of proving her case is on the Mother.
I do not accept the ‘not a party to the orders submission’. The applicable Family Law Act specifically refers to a person not bound by the orders who “aids and abets” contravening a parenting order as recited above. The Criminal Code, if applicable, specifically refers to “a person who aids, abets, counsels or procures the commission of an offence by another person…”.
As to the inappropriate forum submission I am dealing with this at an interim stage and will deal with that application at final hearing if it is made.
Counsel also submitted that the injunction and watch list order was “completely irrelevant” as to whether the Grandmother went to gaol and that the assertion that the Grandmother would leave the jurisdiction rather than face the contravention application was “completely irrelevant”. I don’t accept that submission. The material risk (a material risk is not a certainty or a finding the Grandmother would flee) of flight to avoid the contravention application is relevant to whether or not the injunctions should continue.
I am satisfied, on the Mother’s case, that there is an indirect connection, to an extent I cannot determine at this point, that the Mother being free to travel to and from Country D and to support her son in the retention of the children would, potentially, impact on the children’s welfare. It may reduce the need for the Father to return the children and it may support him maintain the status quo.
True it is that the existence of the injunction and Watchlist order has not prompted or caused the return of the children to the Mother. But that fact does not, of itself, demonstrate that the injunctions and watch list order are without utility. The injunction and Watch list order may promote the end of the very substantial harm the children are alleged by the Mother to be suffering ending with their return to the Mother’s care. I do not accept the ‘no connection’ submission. I am satisfied that the effective retention of the Mother in her home country of Australia is no more than necessary at this stage of proceedings. For the same reasons I do not accept the ‘no sufficient connection’ submission. For the same reasons I do not accept the ‘insufficient connection submission’.
I turn to the ‘tenuous connection outweighed by right to freedom of movement submission’. As clearly stated by the High Court, the common law right of a person to go about their business as they please, including to leave the country, is subject to the law of the land. The Grandmother has significant family and cultural connection to the children, their father who, on the Mother’s case, retains them, and the place where they are. She is in contact with him. She is able to communicate with the children via her son and the Mother isn’t. On the Mother’s case it is not a tenuous connection to the retention of the children.
On the Mother’s case, which unfortunately is not implausible, the “connection” of the injunctions and to the welfare of the children is not tenuous and is not necessarily outweighed by the Grandmother’s admitted right to freedom of movement. I do not accept the “freedom of movement outweighs the tenuous “connection” submission.
Counsel submitted that the injunction and watchlist order should be discharged pending the further hearing because, as the Grandmother had filed two affidavits detailing her understanding of the children’s welfare and whereabouts, the purpose of the injunction and watch list order had been achieved. Counsel further submitted that:
MR TESORIERO: - - - your Honour. There’s no evidence that the watch list order is necessary for [Ms Paige] to appear in these proceedings. The current state of the evidence is she was out of the country when she was served, so I don’t see how it can be made out that she is only appearing because – here today because of the watch list order.
HIS HONOUR: Tell me, does the evidence disclose whether or not she was here on the day I heard the application for the recovery order?...
MR TESORIERO: …According to her affidavit, she was in [Country D] [late] last year.
…
MR TESORIERO: …There’s no evidence that [the Grandmother] has evaded attending court when she has been required to.
…
I will refer to this as the ‘injunctions and Watchlist unnecessary for the Grandmother to appear submission’.
I do not accept the submission that the contravention application is irrelevant to the continuation of the injunctions. The served contravention application (which I treat as filed and listed before me), on the Mother’s case, would be concerning to anybody. It creates a greater reason or incentive to leave the country to avoid that application or until things blow over. It is relevant. I am not determining whether the Grandmother will flee. Only whether there is any material risk.
The Grandmother alleges (and the Mother appears to agree) that the Mother attempted to flee Country D with the children when things got pretty ugly for her in Country D. The Father is alleged to have fled from one part of Country D when he learned of the recovery order. Certainly the Father has not returned to Australia with the children, notwithstanding he told me that he intended to and he didn’t seem to like his current predicament in Country D. He has been highly educated here, returned when needing serious medical treatment, has family here, has lived and worked here for substantial periods of his life and has consenting to final parenting orders here. It is possible to infer he remains with the children in Country D to avoid the process of this court. I do not make that finding, but the circumstance that it may be correct, must on this interim hearing be taken into account.
In all the circumstances I am satisfied there is a material risk that the Grandmother may flee the jurisdiction before the final hearing. If she did so, and supported the Father retaining the children, that may defeat the interests of justice and seriously impinge on the welfare of the children.
The matters that counsel point to as undermining the apparent reliability of the Mother and hence her version of events are of substance. But, unfortunately, the Mother’s account is not implausible and devoid of verisimilitude. On this interim hearing I am not satisfied it is appropriate to dismiss the Mother’s application to continue the injunctions and watch list orders because of the allegation of the unreliability of her evidence.
The Grandmother also indicated that she would consent to an order that, in the event the Mother was not successful in maintaining the injunction and Watch list order, she would consent to an order or make an undertaking that she would comply with the existing orders in the event she travelled overseas.
The final order of this Court remains in force and there is no application to vary it.
The evidence is that the Grandmother knows where her son has the care of the children in Country D. The substance and tenor of the Mother’s evidence is that the Father’s retention of the children was by agreement and reasonable and in accordance with her own local culture which, I infer from her need to attend to her daughter as culturally required (if she becomes pregnant) is important to her. The inference from the Mother’s evidence is that it is only a co‑incidence that she, otherwise a resident of Australia, was in Country D (but not City B) when the children came into the care of the Father. There is evidence is of some antipathy of the Grandmother to the Mother. It appears it is common ground that while the Mother and the children lived for years nearby and the Grandmother lived in Melbourne and the Father in Country D, that the Grandmother never visited or sought to visit the children.
There is some evidence from which the inference can be drawn that the Grandmother was, and is, in reasonably regular contact with her son, the Father. There is the, denied, allegation that the Father moved the children after knowing of the recovery order.
There is some evidence, and the allegation, that the change of care of the children from the Mother and living in Australia as they had for their almost entire lives, to the care of the Father, who they had no contact with for many years and to living in Country D, would have likely been at least difficult for the children.
There is some evidence that the children are now in poor health and living in, for Country D, real deprivation and poverty (the Mother’s assertions and the photo she annexes to her earlier affidavits) and that their immediate welfare requires their immediate return to the Mother’s care.
There is some evidence that the welfare of the children will be significantly advanced if they are immediately returned to their Mother’s care. The Mother asserts she intends to care for the children in Australia when they are returned to her care and that she stays in Country D in a country (relatively) nearby to where the children are said to be to be ready to receive the children as soon as she is able.
The allegations of the Mother, that the Grandmother had aided and abetted what she says is a contravention of the parenting orders by her son, are most serious. Potential penalties, if the Mother’s case is made out, include imprisonment. The Mother’s allegations, if made out, may also constitute the offence of retaining the children out of Australia by aiding and abetting the Father’s retention of the children out of Australia. Potential penalties, if the Mother’s case is made out, include imprisonment.
The Grandmother has substantial ties to this jurisdiction, that is the place where she lives and has lived for many years. She is dependent on social security benefits from the Australian Government. She has family living here.
I am satisfied there is evidence from which I can, and do, draw the inference, for the purpose of this interim hearing on the papers, that the Grandmother has at least some influence over her son. It is the Mother’s case that she has substantial influence. I am satisfied there is some evidence from which I can, and do, draw the inference, for the purpose of this interim hearing, that the Grandmother agrees with and supports the concept that the children should live with her son, the Father.
I am satisfied there is some evidence, that is if the Mother’s case is made out at final hearing, which supports the inference that the Grandmother has aided and abetted her son in the contravention of the parenting orders. And, if the Mother’s case is made out, some evidence, that she has interfered with the recovery order by supporting her son in his retention of the children out of Australia.
In all the circumstances I am satisfied that there is some risk that without the injunction and watch list order restraining her from leaving the Commonwealth, the Grandmother will flee the jurisdiction before the contravention application is dealt with.
There is also the issue of whether the Grandmother has acted, and continued to act, in accordance with the requirement that people not act contrary to a parenting order, including by aiding and abetting, and including by refusing to return a child or by interfering with the duties and responsibilities of the Mother pursuant to the parenting orders, including aiding and abetting her son.
I do not accept the Father’s submission that the injunctions should be discharged and the Grandmother removed as a party on the grounds he asserts. The Grandmother, on the Mother’s case, is a necessary party.
Serious issues to be tried
Balancing all these matters, at this interim stage, I am satisfied that at final hearing, there will be serious issues to be tried. They include whether the Grandmother has, by aiding and abetting her son, contravened and continues to contravene the final parenting orders. Those issues include whether the retention of the Grandmother in Australia, notwithstanding that would restrict her freedom of movement and deprive her of attendance to her cultural obligations out of Australia, would promote the return of the children to the care of the Mother in accordance with the final 2021 final orders.
There is an inference available from the evidence, if the Mother’s case is made out, that the Grandmother’s retention in Australia, against her will, would promote the Father acquiescing in, or complying with, the final parenting order and the recovery order and making the children available for return to the Mother. That would, on the Mother’s case, be in the best interests of the children and significantly promote their welfare and cease the emotional harm of their removal from their (all their life) primary care giver and childhood community in Australia, as well as the physical harm to them of living in poor health and poverty in the Father’s care.
The balance of convenience
I now turn to the balance of convenience.
I am satisfied that the retention of the Grandmother against her will in Australia, notwithstanding that is her permanent home, given her cultural obligations in Country D, is a serious imposition and hardship to her. It would be a serious restriction on her freedom of movement.
I also take into account the cultural obligation to attend Country D is contingent upon her daughter’s pregnancy. I also take into account the need of every parent and grandparent to travel to visit kin, regardless of where that is.
I also take into account that the Grandmother’s retention in Australia may promote the return of the children to their mother in accordance with the 2021 final orders. I take into account that flight, if that occurred, would prevent the determination of the contravention application and may promote the retention of the children in the Father’s care contrary to the final orders of 2021.
I also take into account the injustice, on the Mother’s case, that if the Grandmother travelled to Country D, she would be free to be involved in the children’s lives but the Mother would be unlikely to be so free.
I am satisfied on all of the evidence, and proceeding on the basis the welfare of the children is the paramount consideration, but not the only consideration, that the injunction restraining the Grandmother from leaving Australia with the consequent Watch List order should be made and in place until the determination of the November 2024 proceedings.
Those proceedings will deal with the contravention application against the Grandmother as well as the application for the injunctions to be made on a permanent basis. I consider it appropriate for the welfare of the children that the injunctions sought be made until further order and that it is just and convenient that they be made.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 20 August 2024
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