CARLSON & FLUVIUM
[2011] FamCAFC 96
•29 April 2011
FAMILY COURT OF AUSTRALIA
| CARLSON & FLUVIUM | [2011] FamCAFC 96 |
| FAMILY LAW - APPEAL – CHILDREN – Interim order to remove the child from Australia for purposes of spending time with the mother in Canada – Whether the trial Judge erred in the exercise of his discretion – Whether the trial Judge erred in relation to the evidence of the expert – Whether the trial Judge denied the father natural justice – Whether the trial Judge erred in failing to disqualify himself – No appealable error established. FAMILY LAW - APPEAL – APPLICATION TO EXTEND TIME TO APPEAL – Where the trial Judge refused to stay interim order – Application refused. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the evidence can be put before the Court at the final hearing of the matter – Application refused. FAMILY LAW - APPEAL – APPLICATION TO EXTEND TIME TO APPEAL – Where the trial Judge ordered the mother to have sole responsibility for the child to allow her to obtain a Canadian passport for the child – Where there was no opportunity for the father to be heard – Merit in appeal – Extension of time granted – Appeal allowed – Matter remitted for re-determination. |
| Allesch v Maunz (2000) 203 CLR 172 CDJ v VAJ (No 2) (1998) 197 CLR 172 Gronow & Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Carlson |
| RESPONDENT: INDEPENDENT CHILDREN’S LAWYER: | Ms Fluvium Ms Toomey, Solicitor |
| FILE NUMBER: | BRC | 9490 | of | 2008 |
| APPEAL NUMBER: | NA | 68 | of | 2010 |
| DATE DELIVERED: | 29 April 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, May & Ainslie-Wallace JJ |
| HEARING DATE: | 28 March 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 May 2010 |
| LOWER COURT MNC: | [2010] FamCA 480 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE ICL: | Mr Thiele |
SOLICITOR FOR THE ICL: Schultz Toomey O’Brien
Orders
The appeal against the orders of Barry J dated 28 May 2010 be dismissed.
The father’s application for an extension of time in which to appeal order (1) made by Barry J on 3 August 2010 be dismissed.
The father’s application to adduce further evidence on the appeal be dismissed.
The father’s application for an extension of time in which to appeal order (7) made by Barry J on 20 October 2010 and order (2) made on 17 November 2010 be allowed.
The father’s appeal against order (7) made by Barry J on 20 October 2010 and order (2) made on 17 November 2010 be allowed.
That order (7) made by Barry J on 20 October 2010 and order (2) made on 17 November 2010 be set aside.
The father’s and mother’s applications in relation to parental responsibility be remitted for re-hearing to be heard at the same time as the final parenting proceedings by a Judge other than Barry J.
Any submissions in support of the father, mother or Independent Children’s Lawyer being awarded their costs in relation to the appeal be filed and served within 21 days of the date of these orders.
Any submissions in response be filed and served within 21 days thereafter.
That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
In the event that no submissions are filed and served within 21 days of the date of these orders, there be no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Carlson & Fluvium is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 68 of 2010
File Number: BRC 9490 of 2008
| Mr Carlson |
Appellant
And
| Ms Fluvium |
Respondent
REASONS FOR JUDGMENT
Background
This appeal concerns a child, D, who is the son of Mr Carlson (“the father”) and Ms Fluvium (“the mother”).
The history of the litigation of this matter is somewhat convoluted and it is necessary to go into some detail in order to give context to the appeal. It seems that the mother has always appeared for herself and, although the father was represented for a time by lawyers, he appeared for himself on the appeal. An Independent Children's Lawyer (“ICL”) was appointed in March 2009, who appeared and made submissions on the appeal.
The mother is Canadian and the father is Australian. They met in 2004 in Australia. In December of that year they travelled to Canada. The father was involved in a physical altercation with another person and, as a result was charged and ultimately convicted of assault with a weapon. On his arrest he was taken into custody and then released on what was described as “house arrest”. Eventually he was sentenced to “time served” and was required to leave Canada. He left in about August 2005 and the mother returned to Australia in September 2005.
D (“the child”) was born in June 2006. The parties separated in October 2007 and in November 2007 the mother returned to Canada taking the child and her son X (from an earlier relationship). It seems that at the time of her departure, the mother was unaware that she was pregnant with another child (A) who was subsequently born in July 2008. He is also the son of the father in these proceedings. The father commenced proceedings in Australia concerning A. Barry J found on 3 February 2010 that he had no jurisdiction to determine the father’s application concerning A.
In November 2007 the father initiated proceedings under the Hague Convention in order to secure the return of the child. The matter was heard in Canada in May 2008 and in June 2008 the mother was ordered to return the child to Australia. She unsuccessfully appealed that decision. The child was returned to Australia in October 2008. He has lived with the father since then. The mother did not return to Australia with the child. She has had contact with him through skype communication.
On 22 October 2008 interim orders were made giving the father sole parental responsibility and for the child to live with him.
The mother has not returned to Australia to visit the child since his return and has said that she will not, under any circumstances, return to Australia. The father says that he cannot return to Canada without seeking what was described as a “pardon” which, according to the mother, can be obtained by application three years after conviction. The father also said that he will not travel to Canada for fear that the mother might fabricate criminal charges or commence other litigation against him. Whatever the merits of these respective stances, it appears that the only option, if the child is to see both of his parents, is for him to travel.
Current procedural history
In June 2009 the father filed an application seeking that the orders of 22 October 2008 in relation to the child be made final. In July 2009 the mother filed a response in which she sought final orders that the child live with her and that she have sole parental responsibility for him. As interim orders she asked that the child live with her and that she and the father have joint parental responsibility.
The mother filed an application for interim orders in December 2009 in which she sought an order that the child spend a block period of time with her in Canada over the forthcoming Christmas period.
The matter came before the trial Judge in December 2009 when he listed it for final hearing on 16 February 2010 for two days. In early 2010 his Honour made procedural directions for the preparation of the matter, including provision for the mother to appear by video link, subject to her making certain arrangements.
On 15 February 2010 the mother filed an application in a case seeking orders inter alia that the child spend six months living with her in Canada.
The mother had not complied with the trial Judge’s direction as to her attendance at the hearing through video link and the hearing was adjourned until 18 May 2010.
18 May 2010 hearing
The mother filed an application on 17 May 2010 in which she again sought an interim order that the child spend six months living with her in Canada. That application, to which the father took objection before his Honour, was not included in the appeal book, but was a matter of controversy on the appeal. The father claimed that the first he knew of the interim application was on the morning of the hearing.
At the conclusion of the May 2010 hearing, the trial Judge reserved his decision. On 28 May 2010, his Honour ordered that the mother be permitted to remove the child from Australia to travel to Canada. Conditions were imposed that the mother deposit her passport with the ICL not to be returned to the mother until the ICL be notified that the child had been returned to Australia. It was further ordered that she lodge a bond of $10,000 to be paid to a trust account opened by the ICL to provide security in the event that the mother did not return the child and that the mother undertake not to institute proceedings in Canada that would have the effect of setting aside or altering his Honour’s orders.
The orders provided that the child be collected from and returned to Australia by his maternal grandmother.
The orders also requested that Legal Aid Queensland appoint a child psychologist either in Canada or Australia to conduct an assessment of the child with the mother after two weeks in Canada to determine whether the child appeared “well settled”. Should such a finding be made, provision was made for the time the child was to be returned to Australia to be extended from one month to three months from the date of departure.
It is against these orders that the father appeals.
It is relevant to note that the child has not travelled to Canada in accordance with the trial Judge’s orders. Delays have occurred over the production of the child’s passport (to which we will later refer) and the failure up until now by the mother to deposit the required bond.
Appeal Applications
In addition to the substantive appeal, there were a number of applications in an appeal that were considered by us.
Stay Appeal
On 14 July 2010 the father sought a stay of the trial Judge’s orders made on 28 May 2010. The stay was refused. The father sought an extension of time in which to bring the appeal against his Honour’s refusal to grant a stay.
At the commencement of the hearing of the appeal, this matter was discussed with the appellant and it was queried whether there was utility in determining the stay appeal where orders had not been acted on and the substantive appeal was being heard. As we have now determined the substantive appeal, there is no utility in determining the stay and, accordingly, we propose to dismiss the father’s application for an extension of time in which to appeal the trial Judge’s refusal to stay the orders.
Additional transcripts
The ICL also filed an application in an appeal seeking to add certain transcripts to the appeal material. That application was unopposed and we received the transcripts of proceedings before the trial Judge from 7 December 2009 and 12 January 2010.
Further Evidence
The father also sought leave (and swore an affidavit in support) to adduce further evidence in the appeal. We have had regard to that which the father sought to introduce into the appeal. Much was already before his Honour, attached to affidavits sworn by the father in the proceedings. Thus there is no need to allow such an application about those documents. The balance of the evidence does not fall within the ambit described in CDJ v VAJ(No 2) [1998] 197 CLR 172, where the High Court considered this issue. At paragraph 149 of the judgment McHugh, Gummow and Callinan JJ said in referring to the purpose for the reception of further evidence on appeal:
… the relevant purpose of s93A(2) is to facilitate the correction of an error where that error has probably occurred because the further evidence was not before the primary judge. Because that is so, the proper exercise of the discretion in the circumstances of this case required the Full Court to be affirmatively satisfied of two things. The first was that, given the findings of the trial judge, the further evidence if tendered before him was likely to have produced a different result. It was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order …
We do not propose to consider the further evidence on appeal. The father appeals from interim orders made by his Honour. All parties anticipate a final hearing of all issues to take place shortly. If the father wishes to put the evidence before the Court, the final hearing will provide him with that opportunity. The application was not supported by the ICL.
Extension of Time to appeal against orders dated 17 November 2010
On 20 October 2010 and 17 November 2010 the trial Judge made orders intended to facilitate the production of a passport for the child. The trial Judge discharged the order made by a Federal Magistrate on 25 August 2009 providing, on an interim basis, that the father have sole parental responsibility for the child. We will consider this application more fully later in these reasons.
Grounds of appeal
It appeared clear to us that the father was in fact arguing four broad areas of challenge to his Honour’s judgment. We propose to consider his appeal grounds under these four areas.
Error of discretion
Ground 1 states:
The judge erred in law in ordering that the child be permitted to spend time with the mother in Canada in that:-
(a) the order was not in the best interest of the child;
(b) no or no sufficient consideration was given to the relevant s.60CC provisions;
(c) there was no evidence of the likely effect on the child of his separation from his father having regard to the age of the child, the circumstances of his return to the father from Canada and the period of time that he had been in the father’s sole care;
(d) the evidence of Ms [T] did not establish that it was in the child’s best interest to do so;
(e) There was an unacceptable risk that the child would not be returned to the father and no conditions could obviate that risk; and
(f) his best interests lay with his Honour ordering that the mother spend time with the child in Australia.
As both parties are unrepresented, it is useful if we set out the principles that relate to appeals against discretionary decisions.
In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ held (at 504-05):
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.
Paragraphs 519-20 of the decision in Gronow & Gronow (1979) 144 CLR 513 are also of relevance:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
His Honour considered the mother’s application that the child spend time with her in Canada at paragraphs 114 and following of the reasons for decision.
His Honour set out the competing arguments of the parties. The father, in opposing the orders, argued that the Court would need expert evidence about how a child of three years would react to being removed from the care of a parent with whom he had been living for the previous 18 months. It was also submitted that a psychiatric assessment should be conducted of the parties before the issue of whether the child should travel to Canada was considered.
His Honour noted that, despite what he referred to as “exhaustive” steps, the ICL had been unable to engage a psychiatrist in Brisbane who was prepared to assess the father in person and the mother by video link or other electronic means. It was also argued that the mother was a “flight risk”. It was further argued that there was a risk that she may commence proceedings in Canada to obtain orders that would, in effect, give her sole parental responsibility for the child.
His Honour noted that the father’s care of the child was not an issue to be determined by him on that application.
In coming to a determination of the issue, the trial Judge had regard to the evidence of Ms T, a psychologist, who had been engaged by the ICL to interview the parties and to report to the Court. His Honour relied on her opinion in determining that the child could spend a month with his mother in Canada and could be assessed by a psychologist to see how the child was coping after two weeks. While mindful that he was making a decision “on the papers” (paragraph 158), his Honour found at paragraph 164 that it was in the child’s best interests to re-establish a relationship with his mother and that this would involve him travelling to Canada to do so.
Each party had filed affidavits which set out the evidence to support the orders sought. His Honour was clearly aware of the assertions made by each of them.
Some time before the May 2010 hearing, the father had lodged a complaint with Ms T’s professional body alleging bias and incompetence and also filed an affidavit in these proceedings in which he set out his complaints about her professionalism. His Honour was aware of these complaints. Nonetheless his Honour accepted the opinion expressed in her report and in her oral evidence. That was a course open to his Honour. That a complaint was made about Ms T was not of itself a basis on which her opinion should be rejected, as his Honour made clear at paragraph 146.
Contrary to the assertion in the particulars to this ground of appeal, there was evidence of Ms T before his Honour about the likely effect on the child of separation. His Honour was aware that Ms T’s observations of the parents and child were made some months before the hearing. Counsel for the father cross-examined Ms T on the desirability of having more up to date observations. She nevertheless maintained that the child appeared to be able to travel to be with the mother based on her observations of him with her on skype and what she knew of his past behaviour. We are of the view that his Honour was entitled to rely on this evidence as he did.
Further, as is clear from the orders that his Honour made, it was always anticipated that after two weeks in Canada, the child would be assessed by a nominated psychologist to see whether he was coping and if he was thought to be “well settled”, the time with the mother would be extended to three months from the date of departure.
Finally, his Honour being acutely aware of the past history of the matter, put in place orders that would, as best he could, guard against the mother not returning the child.
The father has not established error of the type referred to in the authorities. This ground of appeal fails.
Errors in relation to the evidence of the expert
Grounds 2, 3 and 4 concern the evidence of Ms T, the psychologist engaged by the ICL to prepare a report about the matter.
The grounds assert that his Honour erred in admitting the evidence of the expert, in restricting the cross-examination of the expert by the father and in failing to accede to the father’s request that the hearing be adjourned and another expert be engaged to prepare a report.
Admitting the evidence
As we have indicated, his Honour was well aware of the father’s complaints about Ms T’s evidence.
Part of the father’s challenge to his Honour’s ruling in this regard related to his failure to accept a further affidavit of the father dealing with the matter. On 21 May 2010, at the outset of the hearing, counsel then appearing for the father sought to file in court the affidavit of the father.
His Honour asked (transcript of 21 May 2010 at p 84) what was in the affidavit and counsel indicated that it related to reasons why Ms T “… can’t be involved further in the matter”. His Honour noted that the father had already filed such an affidavit and counsel indicated that the earlier affidavit did not contain the response to the father’s complaint from Ms T’s professional body. That letter was shown to his Honour who observed that it was to the effect that the professional body considered there to be sufficient grounds to have a hearing of the father’s complaint.
We find no error in his Honour failing to receive this further affidavit.
After hearing submissions on the effect of the letter, his Honour proceeded to take Ms T’s evidence.
Restriction of cross-examination
Immediately before Ms T was called, counsel then appearing for the father (at p 107 of the transcript) asked whether “… cross-examination will be, at large”. His Honour said that, given it was an interim hearing, cross-examination would be confined “… to the matters that I indicated at the outset of today” (at p 86 of the transcript of 21 May 2010). In the context of the ambit of Ms T’s evidence, his Honour said:
… It will be limited to two things. One is the impact on a child of [D’s] age or removal from his father, where he has been for 18 months, weighed against the benefit of being reunited with his mother, his brothers and extended family. So that’s it … But also she can give an opinion as to the length of time. The mother is seeking six months. I have to indicate that, in my view, that period of time does sound somewhat excessive in the circumstances …
At p 108 of the transcript of 21 May 2010, again in reference to the cross-examination, his Honour said to counsel for the father:
You may put to Ms [T], as a general proposition, that she had been biased toward your client. I’ll allow that but I’m not going to allow you to trawl through the report, chapter and verse. You can make submissions about that but it is not a full cross-examination. It is limited to the mother’s application.
Counsel for the father cross-examined Ms T consistent with the father’s position before his Honour and also traversed the allegations of bias raised by the father.
Given the limited ambit of the hearing before his Honour, which was whether the child should travel to Canada and, if so, for how long, he was entitled to restrict cross-examination of the expert to that issue. Counsel for the father did not raise with his Honour any area of proposed cross-examination that fell outside the areas identified by his Honour, nor did he make any application to his Honour to extend those areas.
We find no error demonstrated.
Further expert opinion
Finally it was asserted that his Honour erred because he did not adjourn the hearing to allow a further expert to be retained and another report prepared. It seems that there was some measure of difficulty in having any assessment conducted, given his Honour’s comments about the ICL’s efforts to have both parties psychiatrically assessed, with one parent able to be seen only by video. Apart from a submission to that effect, counsel for the father did not advance any suggestion of who would be available to conduct that assessment or indeed when that alternate expert might be available.
Again, we find no error demonstrated.
Denial of natural justice
Grounds 5, 7, 8, 9, 10 11 and 13 concern a denial of natural justice by the trial Judge to the father.
The father asserts that on 18 May 2010, in accepting and considering the mother’s application filed the day before for interim orders, and in refusing to accept an affidavit of the father in which he sought to contest the matters raised by the mother in her application, his Honour denied him procedural fairness.
The father also asserted that, before the hearing of 18 May 2010, he and his lawyers were of the understanding that the mother would not be participating in the hearing (by implication, in any way) and on 18 May 2010 were taken by surprise when the mother in fact participated in the hearing by telephone. It is asserted that his Honour was in error in proceeding with the hearing under those circumstances.
The thrust of this submission and the basis of the argument to his Honour was that the father and his lawyers had assumed that because the mother would not take part in the hearing, they would be entitled to obtain the final orders he sought in an undefended hearing.
When the matter came before his Honour on 18 May 2010, there was preliminary discussion about documents and the various applications.
At the outset of the hearing, counsel for the father sought to rely on an affidavit sworn by the father. There was some discussion with his Honour about whether it had been served on the mother and, if it had not, whether the father would be entitled to rely on it. Counsel for the father said that the reason why the mother had not been sent a copy of the affidavit was because he understood that she was not going to be participating in the hearing.
At p 28 of the transcript, his Honour observed to counsel for the father that it was inappropriate to seek to rely on a fresh, unserved document in the hearing. Counsel argued that the father did not know that the mother was going to participate in the hearing until the hearing commenced.
All parties made submissions to his Honour about the applications then before him. His Honour said to counsel for the father (at p 64 of the transcript):
But at this present time, I’m making it loud and clear as a signal can be … that I’m not comfortable, making final orders in your client’s favour, on material before the court.
There was further discussion with counsel for the father about the need to present evidence that persuaded his Honour that it was in the best interests of the child to make orders in the father’s favour.
When the matter came back before his Honour on 21 May 2010, counsel for the father again took his Honour to what he said was a failure by the mother to comply with orders made to have the matter ready for hearing and submitted that he and the father had attended court on 18 May 2010 to have final orders made on an undefended basis. Counsel also argued that it was only when the matter commenced before his Honour that the father knew that the mother was seeking interim orders for the child to spend time with her in Canada.
As his Honour said during this exchange, the mother had filed an application in February 2009 in which she sought orders that the child spend six months with her in Canada. His Honour did not accept that the father was unaware that that was the mother’s proposal and, as his Honour noted, the mother’s applications had been waiting for some time for an interim hearing.
Having considered the exchanges between counsel for the father and the trial Judge and noting that no application was made on behalf of the father that the hearing date of 18 or 21 May 2010 be adjourned, we find no denial of natural justice. We observe that we find no error in his Honour’s view that simply because one party may not participate in a hearing does not entitle the other to have the order he seeks made without further enquiry.
As part of a consideration of this issue, we were invited by the father to consider the affidavit that was sought to be put before his Honour on 21 May 2010. Much of what the father there asserts was put to his Honour by counsel for the father in the course of submissions. In our view, had his Honour accepted that affidavit, it would not have altered the outcome nor do we find his Honour erred in not accepting it.
The concept of natural justice does not compel his Honour to accept every piece of evidence sought to be presented in a hearing. In Allesch v Maunz (2000) 203 CLR 172 Kirby J said (at paragraph 35):
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law.
We are of the view that his Honour gave the father a proper opportunity to make submissions on the mother’s proposed orders. It is clear from his reasons that his Honour took those into account in coming to his decision.
We find this challenge not made out.
Failure of trial Judge to disqualify himself
Ground 12 asserts that in failing to disqualify himself the trial Judge erred.
On 21 May 2010, counsel for the father sought that his Honour recuse himself from further hearing in the matter because of “… prejudgment that would lead to a reasonable apprehension of bias” (transcript of 21 May 2010 at p 86). The basis for the application rested on comments made by his Honour on 18 May 2010 about disputes in the evidence.
In argument on the appeal, the father asserted that on 18 May 2010, his Honour embarked on an extensive questioning of his counsel about allegations made by the mother against him, but did not conduct the same level of questioning about the allegations that the father made about the mother’s conduct.
The application was fully argued before his Honour and considered in detail in the reasons for judgment from paragraph 49 onwards. We see no error in his Honour’s expression of the law in this regard and, after considering the transcript of what was said, we do not find that his Honour was in error in not disqualifying himself.
We should add that it is quite clear from what appears in the transcript that his Honour was alive to the interim nature of the proceedings and on a number of occasions referred to the final hearing when the allegations would be tested.
We therefore find that the appeal to his Honour’s orders of 28 May 2010 fails.
Leave to appeal against orders of 20 October and 17 November 2010
As we have indicated, the father filed an application in an appeal seeking an extension of time in which to appeal against an order made by his Honour on 17 November 2010.
During the argument on the appeal it became clear that the orders against which he wished to appeal were first made on 20 October 2010.
We gave leave to the father to make an oral application for an extension of time in which to appeal these orders.
20 October 2010
On 20 October 2010 his Honour set aside the order made by a Federal Magistrate on 25 August 2009 for sole parental responsibility in the father’s favour and ordered in paragraph 7 that the mother and father have “joint parental responsibility for the care, welfare and development of the said child”.
A transcript of the proceedings on this day was on the Court file and, with the parties’ consent, we have considered it.
The mother appeared by telephone, the ICL appeared, as did a solicitor who was then acting for the father.
Apparently the matter was before his Honour on the mother’s application seeking interim parental responsibility to enable her to obtain a passport for the child.
In the course of the discussion about what was being sought, the solicitor for the ICL indicated to his Honour that the mother had sent to her a letter from the Canadian passport office to the effect that, “… if they have a legal document which gives the mother authority to gain access to the information, then they’ll give her the information immediately. It would have to be accompanied by some order that shows that she is the parent of the child” (transcript of 20 October 2010 at pp 4 to 5).
His Honour expressed considerable concern that some 78 days had elapsed after ordering the father to obtain a passport for the child without a passport being produced.
The solicitor for the father submitted that the father’s affidavit showed the steps taken by him to comply with the order for the passport and, in particular, that he had sent the necessary information off to the Canadian authorities but had not received a response. His affidavit asserted that he had been informed that the passport would issue when the relevant authorities had satisfied themselves that they had all of the facts (transcript at p 9).
The solicitor for the ICL submitted that the appropriate order would be for his Honour to enable her and the mother to make enquiries of Foreign Affairs and International Trade Canada about the application said to have been made by the father.
His Honour made orders authorising the ICL and the mother to make those enquiries and ordered the father to produce evidence supporting his claim that he had sent the relevant documents to the passport office and any replies to his enquiries about the issue of the passport.
His Honour then discharged the order that the father have sole parental responsibility for the child and made an order to which we have referred.
17 November 2010
On 17 November 2010 his Honour made further orders discharging the order he made for joint parental responsibility and giving the mother, “sole responsibility for the care, welfare and development of the child …”.
At the outset, we would note that neither such order conforms with the current legislation.
His Honour’s reasons were available and, again with the consent of the parties, we have had regard to them in considering this issue.
The orders of 17 November 2010 were made after a hearing conducted on 9 November 2010.
His Honour noted that, despite an order being made directing the father to obtain a passport for the child, no passport had been issued. His Honour referred to the mother’s application that she be granted sole parental responsibility for the child, “to enable her to make the necessary passport application to the Canadian Consulate.”
His Honour continued:
4.By an Order of Federal Magistrate Howard dated 25 August 2009 the Father was granted sole responsibility for the child.
5.I made an order on the 20 October 2010 that the parents have joint parental responsibility for the child. This was to enable the mother to make the necessary enquiries from either the Canadian Consulate in Sydney or government departments in Canada.
6.The Mother presses ahead with her application that she be granted sole responsibility. Her motivation for this is what she claims is the delay by the Father in obtaining the passport pursuant to previous Orders made for the child to spend time with her. She says in the ordinary course a passport should issue within 14 days.
His Honour then set out relevant sections of the Family Law Act 1975 (Cth), in particular ss 61B, C, D and DA.
He continued:
13.In the present circumstances, although the Mother does not have the child in her care, I am satisfied that this is an appropriate case where she should be given sole parental responsibility principally for the purpose of obtaining a Canadian passport. Once that has been obtained the Order may persist to allow the Mother to spend time with the child in Canada as provided for in earlier Orders of this Court.
His Honour considered that it was important for the child to have a meaningful relationship with the mother, which was the intention of the orders made earlier providing for the child to travel to Canada to see her.
His Honour noted at paragraph 15:
At the present time the matter is at an impasse. Further delay is not in the best interests of the child. The passport of the child is required to give the orders efficacy. If this can be done more efficiently by giving the Mother sole parental responsibility then that is a course that this Court should take.
On 9 February 2011 his Honour further amended his orders and ordered that:
8.One hour prior to the departure of the child, … from Australia in accordance with the Order of the 28 May 2010, paragraph (2) of the Order of 17 November 2010 is discharged and until further order the parents are to have joint responsibility for the care, welfare and development of the child.
9.Each parent is to have responsibility for the day to day care, welfare and development of the child whilst the child is in the care of that parent.
At the conclusion of the hearing we extended time to the father to appeal against these orders without the need for filing an appeal.
In all of the circumstances we considered that the most efficient way of proceeding was to receive further submissions on the issue from each party within a very short time frame.
The mother undertook not to attempt to remove the child from the Commonwealth of Australia until we delivered reasons on the appeals.
Neither the mother nor the ICL wished to make any further submissions, however, the father filed lengthy further submissions and an affidavit sworn on 29 March 2011.
The submissions, so far as they relate to the order of 20 October 2010 and 17 November 2010, appear to assert six broad grounds. First, that the trial Judge failed to allow the father to, “… defend himself or cross examine either the mother or the ICL” thereby denying the father procedural fairness. Secondly, that the trial Judge erred in making orders about issues in dispute without hearing argument. Thirdly, that the trial Judge erred in changing the position regarding parental responsibility in order for a Canadian passport to be obtained by the mother for the child when the father had already applied for one. Fourthly, that the trial Judge failed to consider ss 60 and 61 of the Family Law Act 1975 (Cth). Fifthly, that the trial Judge failed to consider the best interests of the child and, lastly, that the trial Judge failed to consider the difficulties, “… caused to a parent with full time care of a child, but no authority to make major decisions about the care and welfare of that child.”
The child has not travelled to Canada to see his mother. It is unclear whether that is because no passport has yet been issued or whether the mother has not complied with the requirement that she lodge a bond of $10,000.00 with the ICL. That being the case, the order of 17 November 2010 stands and she has an order which might be interpreted as sole parental responsibility for the child.
It should be noted that his Honour adverted to the limitations of the order he imposed, saying at paragraph 16 of his reasons of 17 November 2010:
The mother’s ability to impact on the long term care, welfare and development of the child at a practical level is limited by virtue of the fact the child is living in another country in the care of his father.
In considering whether to extend the time for the filing of the appeal by the father against this order we are mindful that while a grant of leave is not automatic, neither should the rules fixing time by which appeals must be lodged work an injustice. We consider that there is merit in the father’s appeal against these orders, and propose to extend the time in which to bring the appeal.
We do not have the benefit of the trial Judge’s reasons for judgment of 20 October 2010, although we have now been provided with the transcript of proceedings on that day.
It is not in doubt that, for two years prior to the trial Judge’s order, the father had an interim order for sole parental responsibility of the child who had at all times thereafter been in his care. It is clear from the transcript that the mother sought an order for sole parental responsibility in order to secure a passport pursuant to the orders made by the Court on 28 May 2010. It is equally clear that the father opposed such an order.
Why the trial Judge made such an interim order for joint parental responsibility is unclear from the transcript of the proceedings on 20 October 2010, and does not seem to have been what either party then sought. Without suggesting that his Honour was necessarily bound by what the parties sought in that regard, in the absence of some articulated basis for doing so, it is difficult to accept that this order for joint parental responsibility could have been in the best interests of a child, one of whose parents lived in Australia, the other of whom lived in Canada.
It is clear from the transcript, and the orders made by the trial Judge (orders 2, 3, 4 and 5) that the trial Judge was unable to conclude on 20 October 2010 that the father had failed to do anything reasonably required of him to give effect to the orders of 28 May 2010, or that an order for sole parental responsibility was required in order that a passport might issue for the child.
In the circumstances, and whilst accepting that the trial Judge was undoubtedly doing the best he could to facilitate implementation of the orders of 28 May 2010, we conclude that he erred in making an order for joint parental responsibility on 20 October 2010.
We are not unmindful of the fact that the proceedings on 20 October 2010 were more in the nature of one of numerous ongoing mentions of this matter than a hearing as such. Were it not for the practical significance which an order for joint responsibility had for this child, we may have reached a different conclusion.
The trial Judge’s order of 17 November 2010 discharged the order for joint parental responsibility. It might, in those circumstances, be thought that the focus of our interest should only be the latter order, as it discharged the order for joint parental responsibility. We do not think that to be the complete answer. If paragraph (2) of the order of 17 November 2010 were set aside, in the absence of setting aside paragraph (7) of the order of 20 October 2010, the parties would retain an order described as “joint parental responsibility” on an interim basis.
The trial Judge published reasons for his decision on 17 November 2010. His Honour recorded that the mother’s “motivation” for her application for an order for sole parental responsibility was “the delay by the father in obtaining the passport pursuant to previous Orders” of the Court (at paragraph 6 of his reasons). Having set out the provisions of ss 61B, 61C, 61D and 61DA of the Act, the trial Judge concluded that he was “satisfied that this is an appropriate case where [the mother] should be given sole parental responsibility principally for the purpose of obtaining a Canadian passport. Once that has been obtained the Order may persist to allow the Mother to spend time with the child in Canada as provided for by earlier Orders of this Court” (at paragraph 13 of his reasons).
Having recorded, accurately there is no doubt, the practical difficulties which the case presented, his Honour referred to Canadian legislation referred to him by counsel for the ICL. The Canadian legislation (s 7(1)) appears to enable the mother to obtain a passport for the child as a “parent for the child”. The other bases upon which the mother might apply for a passport for the child (“custodial parent” or “legal guardian”) appear to be in the alternative.
His Honour, correctly in our view, concluded that s 7(2) and (3) of the Canadian legislation were not relevant. The evidence before the trial Judge with respect to Canadian law did not establish that an order for sole parental responsibility, or even joint parental responsibility, was required as a precondition to the mother being able to obtain a Canadian passport for the child.
The trial Judge did not anywhere in his reasons for judgment of 17 November 2010 make a finding that any conduct of the father had caused or contributed to a passport not issuing for the child in accordance with the Court’s previous orders.
We have earlier noted the potentially significant implications for the child of his father, his custodian and only parent resident in this jurisdiction, not having an order for sole parental responsibility. The trial Judge does not appear to have considered the implications for the child of his mother having an order for sole parental responsibility once the child was physically in Canada. Such a consideration was not irrelevant in the circumstances of this case, given the fact that Hague Convention proceedings had been necessary to secure the child’s return to Australia in 2008.
Again, with respect to the trial Judge, and accepting that his Honour was seeking to do no more than facilitate implementation of the May 2010 orders of the Court, we reluctantly conclude that he erred in making the orders on 20 October 2010 and 17 November 2010. These orders will be set aside.
This will have the effect that pursuant to s 61C each parent has parental responsibility for the child. The question of whether the presumption that the parents have equal shared parental responsibility should apply (s 61DA) will be determined at the final hearing.
Costs
No submissions were made to us regarding costs and, although it seems unlikely that any party will seek their costs of the appeal in circumstances where only the ICL was legally represented, we grant liberty to the parties to file and serve written submissions in relation to their costs of the appeal within 21 days. Any submissions in response are to be filed and served 21 days thereafter.
In the event that no submissions are filed and served, we consider it appropriate that there be no order as to costs.
I certify that the preceding one hundred and twenty five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May and Ainslie-Wallace JJ) delivered on 29 April 2011.
Associate:
Date: 29 April 2011
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