Dai & Chu (No 2)
[2023] FedCFamC1F 686
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dai & Chu (No 2) [2023] FedCFamC1F 686
File number(s): MLC 6491 of 2023 Judgment of: JOHNS J Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – stay application – where the father unilaterally relocated the children to Australia – where orders made for the children to return to Country B with the mother – where father seeks a stay of the orders – where the father has filed an appeal in conjunction with the stay application – where appeal will be rendered nugatory if stay is not granted Legislation: Family Law Act 1975 ss 60CA, 60CC(2) & (3), 69E, 111CD
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Dai & Chu [2023] FedCFamC1F 667
Kwon v Lee (2006) FLC 93-287
Division: Division 1 First Instance Number of paragraphs: 79 Date of hearing: 15 August 2023 Place: Melbourne Counsel for the Applicant: Dr Ingleby Solicitor for the Applicant: T Squared Legal Counsel for the First Respondent: Mr Bartfeld KC Solicitor for the First Respondent: Rubin Blight Hardy Family Lawyers & Mediators Counsel for the Second Respondent: Ms Tenace Solicitor for the Second Respondent: Melbourne Law Offices ORDERS
MLC 6491 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAI
Applicant
AND: MR CHU
First Respondent
MS LING
Second Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
16 AUGUST 2023
THE COURT ORDERS THAT:
1.That the operation and execution of the decree contained in orders 1, 2, 3 and 5 made on 11 August 2023 be stayed pending finalisation of the father's Amended Notice of Appeal filed 14 August 2023 on condition that pending the determination of the appeal:-
(a)The children X also known as T born 2012 and Y also known as U born 2018 live with the mother;
(b)The children spend time with the father at such times as may be agreed in writing between the father and the mother;
(c)That without admission as to the necessity or entitlement for such an order, the father be and is hereby restrained from coming within 500 metres of:
(i)the V Hotel, W Street, Sydney or any other address at which the mother and the children are residing;
(ii)the mother; or
(iii)the children or either of them.
2.That forthwith the mother's lawyers do all such acts and things as may be required to notify the Australian Federal Police of the stay of the operation of order 1 of the orders dated 11 August 2023 AND IT IS REQUESTED that the Australian Federal Police confirm their receipt of this advice.
3.That by 4.00pm on 25 August 2023 the father do all such acts and things as may be required to file any application and affidavit in support of his application for interim orders to spend time with the children.
4.That by 4.00pm on 4 September 2023 the mother and the second respondent file and serve any response and affidavits in support in respect of the father's application filed pursuant to order 3 hereof.
5.That all extant interim applications as to the children's time with the father be listed for hearing before me at 10.00am on 8 September 2023.
6.That the father's Application in a Proceeding filed 14 August 2023, the mother's Response to Application in a Proceeding filed 15 August 2023 and the second respondent's Response to Application in a Proceeding filed 15 August 2023 be otherwise dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Dai & Chu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 11 August 2023 I made orders between the parties in respect of the children X, aged 11 and Y, aged five (Dai & Chu [2023] FedCFamC1F 667) (“the Judgment”).
The effect of the orders made that day was to discharge an Airport Watch List order previously made and to require the father to deliver the children to the mother at 6.00pm on 14 August 2023 for the purpose of the mother returning with the children to City D, Country B. Further, I ordered that the father deliver to the mother with the children their Australian passports, the child Y’s Country F identity card and any other official document bearing the children’s names.
On the afternoon of 14 August 2023 the father filed a Notice of Appeal, subsequently amended by an Amended Notice of Appeal, and an Application in a Proceeding in which he sought the following orders:-
1.That the operation and execution of the decree contained in Order 1, 2, 3 and 5 made on 11 August 2023 be stayed pending finalisation of the Father’s Appeal filed 14 August 2023.
2.That leave be granted for short service of this Application, and it be listed as a matter of urgency no later than on Monday 14 August 2023.
3.Such other or further orders as may be just.
The father relies upon his affidavit affirmed 14 August 2023 in support of that application.
The father’s application is opposed by the mother who relies upon her Response to Application in a Proceeding filed 15 August 2023 and her affidavit filed the same day. The orders sought by the mother are as follows:-
1.That the application be dismissed.
2.Costs.
The second respondent, who is the children’s maternal grandmother, also opposes the father’s stay application. She relies upon her Response to Application in a Proceeding which is supported by her affidavit, both filed 15 August 2023.
LEGAL PRINCIPLES
It is a matter of discretion whether or not a stay should be granted; the granting of a stay is dependent upon the circumstances of each particular case.
Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides as follows:-
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3) An application for a stay must:
(a) be filed in the registry in which the order under appeal was made; and
(b)be heard by the Judge or Magistrate who made the order under appeal, unless that judicial officer is unavailable.
The principles relating to the granting of a stay pending appeal are well known and are conveniently set out by the Full Court in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, where it states as follows:
[18]The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
a person who has obtained a judgment is entitled to the benefit of that judgment;
a person who has obtained a judgment is entitled to presume the judgment is correct;
the mere filing of an appeal is insufficient to grant a stay;
the bona fides of the applicant;
a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant a stay;
some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
the desirability of limiting the frequency of any change in a child's living arrangements;
the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
the best interests of the child the subject of the proceedings are a significant consideration.
The discretion to stay the operation of orders should only be exercised where circumstances exist which justify a departure from the ordinary rule that a successful litigant is entitled the fruits of his or her litigation, pending the determination of any appeal.
Circumstances that may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed.
In determining that question, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties.
The onus of establishing a proper basis for a stay of the orders rests with the father.
THE HEARING
The hearing was conducted on the papers. Submissions were made by Counsel and Senior Counsel representing each of the parties. Submissions concluded at approximately 1.00pm and judgment was reserved.
At the commencement of the hearing, Counsel for the mother confirmed that order 1 of the orders made 11 August 2023 (“the Orders”) had been implemented; that is the mother’s Solicitor had informed the Australian Federal Police of the discharge of the Airport Watch List order with effect from 12 noon on 15 August 2023. Further, in accordance with order 2 of the Orders, the father delivered the children to the mother shortly prior to 6.00pm on 14 August 2023.
X’S PASSPORT
As to order 3, the mother’s Counsel confirmed that the children’s Australian passports had been delivered with them. However, it was submitted that unbeknownst to the mother, the father had obtained a new Country B passport for X, which he had used to exit Country B in May 2023; that passport was not delivered to the mother with the children on 14 August.
I was referred to [10] of the mother’s affidavit filed 15 August 2023 wherein she deposed as follows:-
On 14 August 2023, and after collecting [X] and [Y], I telephoned the immigration office in [Country B] and enquired about [X’s Country B] passport. I was informed by the immigration office that [X’s Country B] passport has been replaced with a new one with passport number is [sic] […] issued in 2023. The immigration office informed me that [X] will require this passport to enter [Country B].
At [11] of her affidavit the mother deposed that she did not apply for a new Country B passport for X and that she was unaware of the existence of that passport until her discussion with the immigration office in Country B.
In those circumstances, an oral application was made on behalf of the mother that the father cause that passport to be delivered to the mother’s hotel this day. Further, in the event the father’s position is that he does not hold that passport, leave was sought to cross-examine him in relation to those matters.
The matter was stood down to enable Senior Counsel for the father to obtain instructions with respect to the mother’s application.
Upon a resumption of the hearing the following concessions were made by Senior Counsel for the father on his behalf:-
(1)It was conceded that the father had applied for a new passport for X in Country B prior to his departure from City D with the children;
(2)The father used the new passport issued for X to facilitate his departure from Country B;
(3)Upon his arrival in Country G with the children, the father destroyed X’s new Country B passport and threw it away; and
(4)As a result, the father no longer holds X’s new Country B passport.
The concessions made by Senior Counsel for the father obviated the need for the father to give evidence in relation to these matters.
The effect of the father’s actions in destroying the passport is to impede the mother’s ability to return X to City D, Country B. It is her evidence that until such time as a new passport is issued for him, X will not be able to re-enter Country B. It was submitted that in the circumstances, the mother may return to City D via Country F with the children, as a new passport will be more easily obtained there.
In my view, the concessions made by the father as to his actions in relation to X’s passport serve merely to bolster my views expressed in the Judgment as to the calculated manner in which the father removed the children from Country B, without the mother’s or the maternal grandmother’s knowledge or consent. That conduct is, in my view, contrary to the children’s best interests; it has enabled the father to surreptitiously remove the children from their settled primary caregivers and thwart the mother’s ability to return the children to Country B.
FATHER’S ATTENDANCE AT THE MOTHER’S HOTEL
At the request of the mother’s Counsel the matter was called on for further mention around 3.00pm, approximately two hours after the conclusion of the hearing. That mention hearing was conducted via Microsoft Teams.
Counsel for the mother informed the Court of the following matters that transpired shortly after the conclusion of the hearing:-
·The father telephoned the child X on his mother’s telephone. The father instructed X to wait at the hotel in which he was staying with the mother and his brother;
·The father attended the hotel between 2.05pm and 2.10pm;
·The father encouraged X to get into his motor vehicle;
·The mother and her representative intervened and X was removed from the father’s car; and
·A photograph was taken of X seated in the rear seat of that motor vehicle with the father seated in the driver’s seat. That photograph was tendered (Exhibit R3).
Having regard to the alleged conduct of the father it was submitted on behalf of the mother that:-
·There could be no benign explanation for why the father would attend the mother’s hotel and encourage the child to get into his motor vehicle;
·The father’s conduct only strengthens the argument that the children ought be returned to City D with the mother as soon as possible; and
·The father’s conduct indicates that he has no respect for the Court processes, the children or the mother and confirms that the father cannot be trusted.
As a result of that conduct, oral application was made for injunctions restraining the father from attending within 500 meters of the mother’s hotel and Sydney airport pending confirmation that the mother and the children had left the jurisdiction.
Senior Counsel for the father submitted that those matters were irrelevant to the determination of the stay application. He submitted that the father had attended the hotel to provide the child with his telephone number. He further submitted that there had been no attempt by the father to remove the child.
The matter was stood down to enable Senior Counsel for the father to obtain more detailed instructions in relation to the father’s conduct and the mother’s oral application.
Upon resumption of the hearing, no further submission was made. The father through his Senior Counsel conceded that he would agree to an injunction as sought by the mother, with a denial as to the necessity for such order.
In my view, the father’s behaviour in attending the mother’s hotel whilst my decision in relation to the stay application was reserved is extraordinary.
Exhibit R3 plainly depicts the child seated in the rear of the father’s vehicle. In my view, it is an image that is not consistent with an attempt by the father to pass on a telephone number; rather, it is an image that suggests the father’s intention was to abscond with the child. Had the father wished to provide a telephone number for the child, it could easily have been sent via an SMS text message or email.
In my view, the submissions made by the mother’s Counsel that the father has no regard for the processes of this Court or the authority of this Court carries significant weight in light of the father’s conduct.
It was also submitted that the father’s conduct is indicative of his attitude towards his responsibilities as a parent. To place the child in the midst of the conflict between the parents by attending the hotel at which the children were staying with the mother, in circumstances where they had been delivered to her care pursuant to Court orders, demonstrates little insight as to the impact of such conduct upon the children.
In my view, the above matters are relevant in the determination of the stay application, particularly with respect to any conditions of the stay.
THE FATHER’S CASE
The following submissions were made on behalf of the father in support of his stay application:-
·The father conceded that the onus is upon him to establish a proper basis for the stay, noting that it is not necessary for the applicant to establish any special or exceptional circumstances. It was also conceded that the mother is entitled to the benefit of the judgment. Further, it was acknowledged that the filing of an appeal does not provide a stay to the operation of the orders the subject of that appeal;
·That the father filed his Notice of Appeal and Amended Notice of Appeal on the day the Judgment was delivered supports the contention that he has acted bona fide. He also relied upon his compliance with the orders requiring him to deliver the children to the mother’s care;
·The father’s destruction of X’s passport was not fatal to his application and further, that if his application for a stay was granted that conduct was irrelevant;
·A stay may be granted on terms that are fair to all parties which may involve a Court weighing the balance of convenience and the competing rights of the parties;
·In the event that his application is refused, the father will be deprived of the opportunity of pursuing his appeal, as the children will be beyond the jurisdiction of the Court. It was acknowledged that whilst the mother has offered an Undertaking and a bond in the sum of $500,000 in order to fund the repatriation of the children, such repatriation will be impossible once the children are returned to Country B;
·Relying upon s 111CD of the Family Law Act 1975 (Cth), it was submitted that whilst this Court has jurisdiction in relation to the children whilst they are present in Australia (s 111CD(1)(f)) that jurisdiction is extinguished upon the return of the children to Country B, where it is common ground that the courts in Country B are seized of parenting applications filed by the father and the mother; and
·Given that circumstance, any bond offered by the mother is illusory as the father’s appeal would be rendered nugatory in the event of the return of the mother and the children to Country B.
Senior Counsel for the father otherwise made no submission as to the strength or otherwise of the proposed appeal, save that in reply he submitted that the central issue raised in the appeal is that there was no determination with respect to the father’s parenting application. He submitted that those submissions will be expanded upon in preparation for the appeal, and that it could not be said that the appeal was unarguable.
As to the terms upon which the stay ought be granted, it was submitted that orders should be made in the terms of Annexure ‘B’ to the father’s Amended Response to Final Orders filed 27 July 2023 wherein the father seeks orders that:-
·Until further order the children live with him in Sydney;
·The father have sole parental responsibility for the children;
·In the event that the mother is in the same city as the children the mother spend time with them:-
(i)From after school or 3.00pm until 7.30pm each Monday and Wednesday;
(ii)From after school or 3.00pm Friday until 7.00pm Sunday each alternate weekend.
THE MOTHER’S CASE
The mother offers an Undertaking to the Court to return the children to Australia and to comply with any future direction of the Court. She also offers to pay a bond in the sum of $500,000 to be held in a Solicitor’s trust account in respect of any future order of the Family Court for the return of the children to Australia, pursuant to the father’s appeal.
The following submissions were made on behalf of the mother as to jurisdiction:-
·Given the mother’s proposals, the Court’s jurisdiction will not be extinguished in the event of the children’s return to Country B;
·The submissions made this day with respect to jurisdictional issues were not raised by Senior Counsel for the father at the hearing of the interlocutory applications, nor are they matters raised in the Notice of Appeal filed on his behalf or his stay application. I accept that submission; and
·In circumstances where the father has initiated his own proceedings in Country B with respect to the children it is open to him to seek orders from that Court to return the children to Australia.
It was submitted that the father’s conduct demonstrates mala fides at every step of these proceedings. In support of that submission the mother relies upon:-
·The father’s unilateral and surreptitious removal of the children from their place of habitual residence in Country B in May 2023;
·The application made by the father for a new passport for X, without notice to the mother. There is no evidence before the Court as to the basis or bases relied upon by the father for obtaining a new passport for X. It was submitted that in order to obtain that passport, the father must have perpetrated a fraud on the authorities in Country B by either forging the mother’s signature or alternatively, making false representations as to her inability to consent to the passport application; and
·The father’s actions in obstructing the authority of the Court by destroying X’s passport, thus thwarting the mother’s ability to return with him to Country B.
In support of that submission, the mother relied upon [24] of the father’s affidavit filed 14 August 2023 wherein he deposed as follows:-
I do not have [X’s Country B] Passport, or [Y’s Country F] Identity Card. I only have their Australian passports. My counsel informed [Ms Dai’s] counsel of this prior to the Orders being made. To the best of my knowledge neither [X] nor [Y] are eligible to travel to [Country B] from Australia using those Australian passports without a visa to enter [Country B], which they do not currently have. If they do travel on their Australian passports, the [Country B] authorities will become aware of [X’s] dual citizenship, which could have catastrophic consequences for him. Based on my own experiences applying for visas/entry into [Country B] as a foreign national, it may take 2-3 weeks to obtain an entry permit for the children.
Counsel for the mother was highly critical of the father’s silence in that paragraph as to the actions taken by him to destroy X’s passport. It was submitted that his silence in relation to those matters is evidence of his mala fides. I accept that submission.
The mother also relied upon [25] of that affidavit wherein the father deposed as follows:-
On 12 August 2023 at 3:03pm my lawyers wrote to [Ms Dai’s] lawyers asking them “Please urgently provide us with confirmation and supporting documentation that your client has obtained the necessary visa for [Y] and [X] to enter [Country B] on their Australian passports on Tuesday 15 August 2023 via […] flight […]. If not, how does your client propose the children enter [Country B]?”
It was submitted that that evidence, sworn at a time when the father knew he had destroyed X’s passport and the impact that the destruction of that document had upon his ability to re-enter Country B, is evidence of the father’s endeavours to mislead this Court and thwart the mother’s ability to return the children to Country B. It was submitted that the father has lied to this Court by omission.
It was also submitted that in doing so, the father had compromised the position of his lawyers who have made representations to the Court that he has no knowledge of the whereabouts of the passport. As a result of those matters, it was submitted that the Court could be satisfied as to the father’s mala fides and that discretion should be exercised in favour of the mother.
It was further submitted on behalf of the mother that to delay the children’s return to Country B was contrary to the children’s best interests. In her affidavit filed 15 August 2023, the mother deposed that the children’s new school year in Country B is scheduled to commence in August 2023. If the stay is granted, the children will not be able to commence the school year with their peers.
Counsel for the mother submitted that the father’s conduct in these proceedings invites findings that he has engaged in subterfuge and fraud, that he has sought to obstruct the orders of this Court and that he has committed perjury, having regard to the matters to which I have earlier referred.
As to the merits of the father’s appeal, it was submitted that grounds 1 and 2 are bound to fail given the failure by Senior Counsel for the father to raise those matters during the course of the hearing before me.
It was submitted that ground 3.1 is little more than a complaint as to the result of that hearing, and ground 3.2 must fail as the issue of whether or not the children should be returned to Country B was a matter raised in the parties’ applications.
As to grounds 3.3 and 3.4, it was submitted that the issue before the Court was whether the children should be permitted to return to Country B, or alternatively, the proceedings continue in this Court. Inevitably, if determined that the children should be returned to Country B, the father’s interim parenting application falls away. As to 3.4, the proper approach to be adopted in the determination of the matter was that identified by the Full Court in Kwon v Lee (2006) FLC 93-287
Similarly, it was submitted that there is little merit in the matters identified in ground 4 of the proposed Amended Notice of Appeal. It was further submitted that the appeal was little more than an attempt to delay the return of the children to Country B and to legitimise the father’s abduction of the children.
It was submitted that the best interests of the children is a relevant consideration in the determination of the stay and consistent with the findings made in the judgment; the children’s best interests support the rejection of the father’s stay application.
In the event that the stay is granted, it was submitted that the children should remain in the care of the Mother. Further, it was submitted that only supervised time could be contemplated for the children with the father in light of his unilateral removal of them from Country B, and his conduct at the mother’s hotel following the hearing of this application.
THE SECOND RESPONDENT’S CASE
The second respondent confirmed her opposition to the father’s application for a stay and otherwise adopted the submissions made on behalf of the mother. She also relied upon my findings at [92], [119] and [122] of the Judgment in relation to the children’s best interests.
DISCUSSION
Whilst there can be no question that the father’s appeal has been filed in a timely fashion, there is a long shadow cast over his bona fides, particularly given his conduct and evidence in relation to X’s passport, and in his attendance at the mother’s hotel on the face of the photograph tendered (Exhibit F3), to remove X from the mother’s care, whilst this judgment was reserved. In my view, that conduct demonstrates a complete disregard not only for the authority of this Court, but also of the father’s responsibilities as a parent.
The father’s explanation for that conduct that he was endeavouring to provide his telephone number to X, is in my view implausible, particularly having regard to the fact that X was placed in the father’s motor vehicle.
As a result I have significant reservations as to the father’s bona fides.
However, the central issue in the case is whether the appeal may be rendered nugatory as a result of the mother’s return to Country B. The issues raised by Senior Counsel for the father as to the impact of Part XIIIAA, and particularly s 111CD are compelling. The note to s 69E of the Act provides as follows:-
Note: Division 4 of Part XIIIAA (International protection of children) has effect despite this section.
Sub-division B of Division 4 of Part XIIIAA regulates the jurisdiction for the person of a child.
Sections 111CD(1)(e) and (f) of the Act provide as follows:-
(1) A court may exercise jurisdiction for a Commonwealth personal protection measure only in relation to:
….
(e) a child who is present in a non-Convention country, if:
(i) the child is habitually resident in Australia; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child; or
(f) a child who is present in Australia, if:
(i)the child is habitually resident in a non-Convention country; and
(ii) any of paragraphs 69E(1)(b) to (e) applies to the child.
Having regard to those provisions it is clear that in the event that the children return to Country B, which is a non-Convention country, the Court may only exercise jurisdiction in relation to them if they are habitually resident in Australia; the children in this matter are not.
Having regard to those matters, I am satisfied that upon the children’s departure from Australia, this Court will not have jurisdiction in relation to them.
The bond offered by the mother is substantial. She risks the loss of $500,000 in the event that she does not comply with the Undertaking she offers to the Court. Nonetheless, were she to ignore her obligations under that Undertaking the reality is there is no remedy or compulsion which would ensure the children are returned to Australia, if required.
In those circumstances, I am satisfied that the risk that the appeal may be rendered nugatory is a compelling consideration and on that basis, I will grant a stay as sought by the father, but subject to the conditions discussed below.
Whilst I do not view the father’s appeal to have strong prospects, I cannot discount the fact that he has an arguable case.
THE APPEAL
At this stage, I understand that the father’s appeal is to be listed for hearing on 4 October 2023, a period of some seven weeks. That there is a delay of seven weeks in the hearing of the appeal is concerning.
This matter has had an unfortunate history in the Court. The mother filed her Application for Final Orders on 16 June 2023, some three days after the children’s arrival in Australia. The matter was listed before a Judicial Registrar for a Directions Hearing on 26 June 2023. That day, the Judicial Registrar listed the parties’ competing interlocutory applications for hearing direct into my docket, some six weeks later on 8 August 2023.
At no stage did that Judicial Registrar communicate to my Chambers that the mother alleged there had been an international abduction of the children from Country B. Nor was there any request by the Judicial Registrar to list the matter urgently. Had such request been made, the matter would have been listed before a Judge for urgent hearing.
Having regard to the father’s conduct, both as to the manner he surreptitiously removed the children from Country B, and his attendance upon the mother’s hotel enabling X to enter his motor vehicle whilst this judgment was reserved, I hold ongoing significant concerns for the safety of the mother and the children. It is to be hoped that in light of my findings with respect to those matters, there is capacity for the Court to expedite the hearing of the father’s appeal.
CONDITIONS
As to the conditions of the stay, it was common ground that both parties sought orders as to the children’s care arrangements pending the determination of the appeal.
In deciding a particular parenting order, the best interests of the child is the paramount consideration.[1] Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in a child's best interests. The Court must give greater weight to the need to protect the child from physical or psychological harm from being exposed to abuse, neglect or family violence.[2] Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order, or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
[1] Family Law Act 1975 (Cth) s 60CA.
[2] Ibid s 60CC(2)(b).
The mother’s position is that the children should remain in her care, and any time between the children and the father should be as agreed and subject to supervision. She contends that the father cannot be trusted and that the best evidence to support that contention is his actions in attempting to remove the child, X, from her care yesterday. The father denies that allegation.
The father sought that the children live with him and spend time with the mother in accordance with Annexure ‘B’ of his Amended Response to Application for Final Orders. In the event that I was against him, and found that the children should remain in the mother’s care, Senior Counsel for the father sought the opportunity to adduce further evidence as to appropriate spend time arrangements.
Having regard to my findings with respect to s 60CC as set out in the Judgment, coupled with my findings as to the father’s attendance upon the mother’s hotel yesterday, I am satisfied that the children’s best interests will be served by them living with the mother pending the disposition of the appeal.
Until their removal from Country B, the children lived in the primary care of the maternal grandmother and the mother. The children have now been returned to the mother’s care. I am satisfied that the children should not suffer further upheaval by another change in residence pending the disposition of the appeal.
In light of the serious issues raised, particularly in respect of the father’s actions at the mother’s hotel, I am satisfied that the most appropriate manner in which to consider what time, if any, and on what basis the father should be spending time with the children should be dealt with following receipt of further material from both parties. Accordingly, I will make directions for the filing of material in relation to that discrete issue and will otherwise list the matter for hearing before me on 8 September 2023.
I will otherwise order that the injunctions made yesterday continue until further order for the protection of the mother and the children.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 16 August 2023
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