EJK & TSL (No. 4)
[2006] FamCA 1022
•13 October 2006
FAMILY COURT OF AUSTRALIA
| EJK & TSL (No 4) | [2006] FamCA 1022 |
| APPEAL - From decision of Family Court Judge – Whether trial Judge erred in exercise of discretion in refusing to grant stay of orders pending appeal against his substantive orders providing for child to live with father and be returned to Korea for Korean courts to determine parenting issues – Trial Judge considered in the exercise of his discretion the likely success or otherwise of grounds of appeal – Whether trial Judge properly applied principles relevant to granting a stay in parenting proceedings – Consideration of relevant principles as discussed in Clemett and Clemett (1981) FLC 91-013. Examination of the consideration of substantive grounds of appeal by the trial Judge – Whether error by trial Judge in determining mother’s parenting application on a threshold basis – Whether trial Judge had proper regard to principles enunciated in Rice and Asplund (1979) FLC 90-725 and King and Finneran (2001) FLC 93-079 – Whether error by trial Judge in failing to appoint an Independent Children’s Lawyer and order a Family Report – No error by trial Judge in circumstances of case – Whether trial Judge was in error by failing to give significant weight to mother’s position she would not return to Korea because of likely criminal proceedings – No error by trial Judge in exercise of discretion. Whether trial Judge’s findings that appeal not brought bona fide vitiated the exercise of his discretion – Discretion not impeached by this finding – Real consideration was effect of delay in proceedings on child in light of history of matter – Whether trial Judge properly considered hardship to either party – No appealable error by trial Judge – Whether trial Judge properly considered time until appeal could be heard – No error by trial Judge. Appeal dismissed. COSTS – Mother totally unsuccessful in proceedings – Mother ordered to pay father’s costs as agreed or failing agreement as assessed. |
| Family Law Act1975 (Cth), s 60CA Family Law Rules 2004, Ch 19 |
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306
Clemett and Clemett (1981) FLC 91-013
Coulton v Holcombe (1986) 162 CLR 1
De Lewinski v Director-General New South Wales Department of Community Services and Anor (1996) 70 ALJR 532; (1996) FLC 92-678
F and C and Child Representative [2004] FamCA 568
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80; [2005] 3 WLR 14; [2005] UKHL 40
In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329
King and Finneran (2001) FLC 93-079
Re K (1994) FLC 92-461
Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416
Rice and Asplund (1979) FLC 90-725
Sanders and Sanders (1976) FLC 90-078
| APPELLANT: | EJK |
| RESPONDENT: | TSL |
| FILE NUMBER: | MLF | 3708 | of | 2004 |
| APPEAL NUMBER: | SA | 60 | of | 2006 |
| ORDERS MADE: | 4 October 2006 |
| JUDGMENT DELIVERED: | 13 October 2006 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Bryant CJ, Kay and Boland JJ |
| HEARING DATE: | 3 October 2006 and 4 October 2006 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 October 2006 |
| LOWER COURT MNC: | [2006] FamCA 953 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson |
| SOLICITORS FOR THE APPELLANT: | Westminster Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes QC, with Ms Johns |
| SOLICITORS FOR THE RESPONDENT: | Tress Cox Lawyers |
Orders
The appellant pay the respondent’s costs of the appeal as agreed, or failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.
It is noted:
That the appeal was dismissed in accordance with Order 1 of the orders of the Full Court made on 4 October 2006, which order provided:
i)That the appeal against the orders of Justice Guest of 2 October 2006 pursuant to the Amended Notice of Appeal filed 3 October 2006 be dismissed.
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 60 of 2006
File Number: MLF 3708 of 2004
| EJK |
Appellant
And
| TSL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by EJK (“the mother”) against orders made by Guest J on 2 October 2006. Those orders were orders by which the trial Judge refused to stay earlier orders made by him on 28 September 2006 (“the substantive orders”). In his substantive orders the trial Judge dismissed an application for interim orders filed by the mother in which she sought the parties’ only child JWL, aged 5 years, should live with her in Australia and spend time with TSL (“the father”) who lives in Korea. As part of her application, the mother sought orders for the independent representation of the child, and for the preparation of a Family Report.
The mother filed an amended Notice of Appeal on 3 October 2006. These reasons deal only with the appeal against the trial Judge’s refusal to grant a stay, rather than the appeal against the substantive orders. However, as will become apparent from our reasons, issues raised in this part of the appeal also involve a consideration of the grounds in respect of the substantive orders. For convenience, we will refer to this appeal as “the second stay appeal”.
On 2 October 2006 the trial Judge made orders staying all extant proceedings before the Court, that from 2.00 pm on 4 October 2006 all previous parenting orders be discharged, that the child live with the father, and that the father return with the child to Korea on specified flights and in particular on a flight departing Sydney on 5 October 2006 to Korea. His Honour’s orders also provided that the mother be at liberty to accompany the father and the child on the specified flights.
The gravamen of the mother’s second stay appeal is her assertion that the trial Judge incorrectly applied the principles in Rice and Asplund (1979) FLC 90-725. In particular it is her assertion that his Honour fell into error by dealing with her application on a threshold basis, rather than by way of a more expanded hearing. It is asserted the trial Judge should have had regard to the practical application of the principles enunciated in Rice and Asplund (supra) as discussed by Collier J in King and Finneran (2001) FLC 93-079 at paragraph 44 of his Honour’s judgment. The mother submitted that the trial Judge should have granted a stay of his orders made on 28 September 2006 which provide the father “be at liberty to remove the child … from the Commonwealth of Australia to Korea”.
Brief history of the litigation
In order to understand the issues raised in this appeal, it is necessary to have some understanding of the litigation between the parties in respect of their child, and in particular proceedings in this Court.
The parties and the child are all Korean citizens. Following the parties’ separation, the mother commenced proceedings for orders, including orders about the child, in a Korean court. In June 2003 the Korean court made orders for the mother to have contact with the child, who at separation had remained in the father’s care. In 2004, without the father’s knowledge or consent, the mother abducted the child from Korea, eventually arriving in Australia in June 2004. The mother and child lived in Australia thereafter.
On being served with ex parte interim parenting orders obtained by the mother in this Court, the father became aware of the child’s whereabouts, and filed a response to the mother’s application for final parenting orders. The parties’ competing applications were listed before Dessau J in October 2005 to be determined, by agreement, on a summary basis. Her Honour ordered that the child should be returned to Korea in his mother’s care for determination by the Korean court as to the parent with whom he should live, and for suitable contact arrangements.
The mother appealed the trial Judge’s orders on the basis that her Honour had applied incorrect principles (forum non conveniens) in determining the child should be returned to Korea rather than best interests principles. The mother’s appeal was dismissed by the Full Court on 9 August 2006 who determined whilst forum non conveniens principles were not applicable when a child was in the jurisdiction of the Court, the trial Judge had, in the alternate, decided the case on best interests principles, and had not erred in the exercise of her discretion in so doing.
On 15 August 2006 the mother filed her second application in this Court for final and interim parenting orders (the mother’s earlier application was stayed by Dessau J in November 2005). That application came before Dessau J on 16 August 2006 when her Honour stayed all proceedings before the Court, except insofar as those proceedings related to orders for the return of the child to Korea. In effect, her Honour refused to abridge time to allow the mother’s application for interim orders that the child live with her to be heard that day, and made orders for the child to live with the father and be returned to Korea with him two days later.
The mother then brought an application before Dessau J for a stay of her orders pending an appeal. Dessau J refused the stay sought, and an urgent appeal was brought before the Full Court on 17 August 2006. On 21 August 2006 the Full Court upheld the mother’s appeal against the refusal to grant a stay, and expedited the substantive appeal (“the first stay appeal”).
On 21 September 2006 another Full Court heard and determined the substantive appeal against Dessau J’s orders made 16 August and dismissed the appeal on the basis that it was moot.
As with the mother’s first stay appeal, this second stay appeal was expedited and heard by us on 3 October 2006. At the hearing of the appeal typed transcript of the proceedings before the trial Judge on 21 September 2006 was not then available. As will become apparent from our reasons, as a result of submissions by the mother’s counsel about the parameters of the dispute identified before the trial Judge, we adjourned the hearing to enable us to listen to the tape recording of the hearing on 21 September 2006 so we could properly consider those submissions. On 4 October 2006 we dismissed the mother’s stay appeal, and advised we would subsequently publish our reasons. These are our reasons for dismissing the mother’s second stay appeal.
The Grounds of Appeal
The mother’s grounds of appeal in the second stay appeal may be conveniently summarised into four broad areas of challenge to the trial Judge’s orders:
·that his Honour’s decision was wrong in law and contrary to established authority;
·that the trial Judge erred in concluding the mother’s appeal
-was not based on substantive grounds
-went beyond the parameters at the hearing on 21 September 2006
-was a delaying tactic;
·that the trial Judge made errors of fact (as particularised above) and in finding the appeal could not be heard within a reasonable time; and
·that the trial Judge failed to consider and weigh the consequences of the refusal of a stay on the child.
Before us, counsel for the mother principally argued the appeal on the basis that the trial Judge was in error in determining the mother’s interim application on a threshold basis, that he had failed to consider and collectively weigh matters relevant to the child’s best interests in determining he should be returned to Korea having regard to the time he had spent in Australia in light of the mother’s asserted position that she would not herself return to Korea. Those errors, it was asserted, permeated the trial Judge’s stay orders.
Chronology
We find it convenient to repeat the relevant background set out in the first Full Court judgment (Holden, Coleman and Boland JJ):
7. Relevant factual background matters, except for allegations by the mother of domestic violence perpetrated on her by the father, are not in dispute.
8. The mother was born in November 1967 in South Korea. At the date of the hearing she was engaged in full time home duties, and the holder of a Visitor’s ETA and was applying for a Business Long Stay Visa to permit her to reside in Australia. The mother asserted she had been offered employment as an interpreter and translator. The mother has tertiary qualifications in mathematics, computer science and linguistics, and was previously employed as a university lecturer.
9. The father was born in July 1961, also in South Korea. The father is a tenured full-time university professor in the Department of Statistics and Information at a university in Korea, and earns approximately
AUD$96,000.00 per annum.
10. The parties were married in Seoul, Korea in March 2000, and separated in Korea in December 2002.
11. The child was born in Korea in February 2001. After the child’s birth, and until the parties’ separation, the mother was engaged in full-time homemaking and parenting duties. The father’s mother (‘the paternal grandmother’) lived with the parties for approximately six months after the child’s birth. The paternal grandmother again lived with the parties for about four months after the child was accidentally burnt whilst playing with detergent as a toddler.
12. The mother asserted after the marriage the father exhibited controlling behaviour, and she said she was subject to physical attacks by the father including that:
· in June 2001 he assaulted her and pushed her out of their apartment;
· in April 2002 he kicked her, threw objects at her, threatened to expel her from the apartment, and locked her in the bedroom;
· in October 2002 he struck her in the face causing her lips to swell;
· in December 2002 after an argument he struck her in the face repeatedly (the mother was admitted to hospital for five days); and
· in December 2002 after an argument he pulled her from their car at one location, and when she got back into the car, drove to a school yard where he pulled her from the car and threw her onto the ground and locked the car. She said she tried to hang on to the car but he started the car causing her to fall off, and then reversed the car and drove off. After this incident the mother was admitted to hospital where she remained for 21 days.
13. The father denied that he had physically assaulted the mother, although he conceded she had been excluded from their apartment, and that he had left the mother in the school yard in December 2002.
14. During the mother’s hospitalisation in December 2002/January 2003 the child remained in the care of the father who was assisted by the paternal grandmother.
15. On her release from hospital the mother sought legal advice and commenced proceedings in a District Court in Korea in March 2003.
16. In June 2003 the Court granted the mother contact to the child. For three months the mother had day only contact each Saturday, and from September 2003, the mother had contact each alternate weekend from
10 am Saturday to 6 pm Sunday.
17. The mother asserted from about February 2004 the child commenced showing signs of distress when in her care, and from May 2004 initially refused to go on contact visits.
18. In June 2004 the mother, whilst the child was with her for contact, left Korea and travelled initially to Germany and France, eventually arriving in Melbourne in mid June 2004 where she commenced living with her sister and brother-in-law and their two children.
19. In July 2004 the mother’s application for divorce was refused by the Korean court. The mother was legally represented at the hearing. The mother lodged an appeal to the Seoul High Court on 10 September 2004 and the father filed a ‘counterclaim’ on 29 March 2005.
20. The father’s lawyer asserted on 23 April 2005 the mother withdrew her appeal leaving the husband’s counterclaim pending.
21. The father’s lawyer asserted as a result of the mother’s withdrawal of her appeal, the judgment of the District Court in Korea of 25 August 2004 became final leaving the father’s counterclaim pending. However, it was conceded before the trial judge that there were no proceedings on foot in the Korean courts.
22. On 1 November 2005, after the hearing and before the trial judge delivered reasons for judgment in respect of orders for the return of the child to Korea, the father asserted he commenced proceedings in Korea seeking orders for parental authority and to be fosterer of the child.
Relevant Law – Stay
As in the first stay appeal, neither party put in issue the correct principles as set out in the authorities to be applied in respect of a stay. The relevant authorities and the applicable principles and arguments of counsel in respect of those authorities were clearly identified by the trial Judge in his reasons delivered on 2 October 2006 including the decision of the High Court in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; De Lewinski v Director-General New South Wales Department of Community Services and Anor (1996) 70 ALJR 532; (1996) FLC 92-678; Clemett and Clemett (1981) FLC 91-013; Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 and Sanders and Sanders (1976) FLC 90-078.
We consider it is helpful to our discussion (as did the Full Court in the first stay appeal) to repeat the relevant principles applicable to a stay in a parenting case as discussed in Clemett (supra). At 76,175 Nygh J said:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period.
Grounds of Appeal
Before commencing our discussion of the grounds of appeal, it is important we note that this is an appeal against a discretionary judgment. The principles which govern such an appeal are not in doubt; see House v The King (1936) 55 CLR 499 at 504 - 5; Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 at 627 and Gronow v Gronow (1979) 144 CLR 513 at 519.
Fundamental to whether the mother’s substantive appeal discloses substantial grounds is the question of the asserted error by the trial Judge in dealing with “changed circumstances” as a threshold issue, rather than proceeding to a fuller hearing after appointment of an independent children’s lawyer and the obtaining of a Family Report.
On behalf of the mother her counsel argued that:
·the appeal is based on substantial grounds;
·a detailed examination of the grounds should not be conducted in this stay appeal;
·the effect of refusing the stay would render the mother’s substantive appeal nugatory; and
·the appeal was brought bona fide and was not a mere delaying tactic.
Before us the mother’s counsel expanded his written argument in respect of the grounds of the substantive appeal arguing that they were essentially based on a challenge to the approach adopted by the trial Judge. In his written submissions he said that the grounds “traverse issues as important as whether the child should have been separately represented, whether there should have been a summary or fuller hearing, whether the ‘change of circumstances’ test was correctly applied, and whether the effects and impact upon the child were properly considered and evaluated” (mother’s submissions paragraph 3).
Senior counsel for the father in his written submissions set out relevant principles in determining an application for a stay and noted that there is no automatic stay on the filing of an appeal (r 22.12 of the Family Law Rules 2004). He submitted:
·the granting of a stay is wholly discretionary and matters to be considered in the exercise of such discretion are:
-whether refusal to grant a stay would render a successful appeal nugatory
-any hardship that would be suffered by either party
-the merits of the appeal
-whether there has been any delay in applying for the stay
-the bona fides of the applicant
-the expected time before the appeal can be heard;
·each case should be determined in the light of its own particular circumstances; and
·the best interests of the child and the desirability to avoid frequent changes in living arrangements for the child.
Senior counsel submitted that on its facts this case was distinguishable from Clemett (supra), this being a case where the issue is whether parenting proceedings should be heard in Australia or Korea.
Discussion
It is not in dispute that the mother’s case before the trial Judge (and before Dessau J on 16 August 2006) was there had been a change of circumstances since the original judgment of 23 November 2005, which change of circumstances warranted a further hearing of the mother’s interim and final applications for the child to live with her in Australia, and for him to spend time with and communicate with the father.
The change of circumstances were asserted to be twofold:
i)that the child was well settled in his present environment (having lived in Australia for 27 months with the mother, and was attending a local school); and
ii)the mother would not return to Korea because of fear of imprisonment, there being a warrant for her arrest outstanding in Korea.
As senior counsel for the mother noted in his written submissions each case must be determined on its own particular facts. We consider in this case the parties’ and the child’s background including their Korean citizenship, the history of the litigation in this Court, as well the original Korean proceedings, and the child’s removal from Korea without the father’s knowledge or consent, were very relevant considerations. The trial Judge’s reasons for judgment disclose that his Honour was clearly cognisant of, and took into account, these matters.
In the circumstances of this case, we discern the central issue to be considered by the trial Judge in determining whether or not in the exercise of his discretion to grant the stay, was whether a refusal of the stay would render a successful appeal nugatory. In considering the trial Judge’s reasons we consider he was well within the proper exercise of his discretion in giving significant weight to the proposed grounds of appeal and the likelihood of success or failure of the substantive appeal. That exercise was required to be carried out having regard to the overarching principle of the child’s best interests being the paramount consideration (s 60CA Family Law Act1975 (Cth) (“the Act”)).
Asserted improper application of the principles in Rice and Asplund
Before turning to examine the trial Judge’s treatment of some of the proposed grounds of appeal, we consider it appropriate to deal with the assertion of counsel for the mother that the trial Judge erred in dealing with the matter on a threshold basis, rather than by way of a fuller hearing after appointment of an independent children’s lawyer, the provision of a Family Report and with limited cross examination of the father.
At the commencement of the hearing before the trial Judge on 21 September 2006 both parties agreed the issues to be determined by the trial Judge were whether or not there had been a change of circumstances since the determination of Dessau J on 25 November 2005, that the correct principles to be applied were those enunciated in Rice and Asplund (supra), and that those principles were not affected by the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).
In opening and throughout his submissions to the trial Judge, counsel for the mother submitted “it’s no longer appropriate to have a summary hearing and there should be a full hearing”. He further submitted “I would say that you should order an independent children’s lawyer and a family report and then make a decision whether it should be a summary hearing or a full hearing” (transcript 21 September 2006, p 6).
Counsel for the mother argued before us that the trial Judge had not properly applied the test in Rice and Asplund (supra) as explained in paragraph 44 of the judgment of Collier J in King and Finneran (supra). Collier J said at 88,367:
44. To apply the test in Rice and Asplund is to make an assessment on the material then available to the court as to whether or not the matters raised in that material make it necessary or proper in the best interests of the children, the subject of litigation, to allow further proceedings. In arriving at such a decision, the court will give consideration to the importance or seriousness of the issues raised, both individually and where necessary collectively, and the impact that they may have on the children. It may be necessary to assess whether or not the matters are indeed matters of change or whether they are completely fresh issues that require revisiting the earlier decision. This is not always a clear distinction.
It was asserted, in reliance on this paragraph, it was necessary for the trial Judge to have weighed the evidence about the child’s present settled environment, and the effect of a change of that environment by his return to Korea. It was submitted that to do so properly an independent children’s lawyer should have been appointed in accordance with the criteria in Re K (1994) FLC 92-461, and any decision deferred until the trial Judge had the benefit of a Family Report. It was further asserted the trial Judge had failed to consider “collectively” both the child’s settled environment and the mother’s position that she would not return to Korea with the child.
In considering these submissions we are satisfied it is unhelpful to refer to paragraph 44 of the judgment of Collier J in isolation. Rather, that paragraph must be read in the context of the preceding paragraphs where his Honour said:
40. Clearly, in Rice and Asplund itself and the following authorities, there is no indication or guideline as to the manner in which the court is to reach its determination as to whether or not the matter will be dealt with as a threshold test.
41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or as I understand the appellant’s submissions at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.
42. A judge or magistrate exercising jurisdiction under the Family Law Act is not required to undertake the exercise of identification and evaluation that the husband urges. To do so would be to abolish for all effective purposes the opportunity of a court to make a threshold determination in cases where such an early end to the litigation was the best result for the children.
43. The husband’s line of argument in this regard is flawed. It is not the case that an application of the Rice and Asplund test divides or compartmentalises a matter into a threshold component and a merit component. It is clear that a trial judge has a discretion as to whether or not to deal with the matter at a threshold level or to embark upon a full hearing (see Bennett and Bennett (1991) FLC ¶92-191).
We also consider it relevant to refer to paragraph 50 of the judgment where his Honour said:
50. The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow. (original emphasis).
Whilst the Full Court in F and C and Child Representative [2004] FamCA 568 placed a caveat on Collier J’s conclusion in paragraph 50 (having regard to the decision of the High Court in CDJ v VAJ (1998) 197 CLR 172 at 204, paragraphs 117 to 118) for the purposes of this appeal, what is relevant is to note his Honour’s emphasis that whether a trial Judge deals with the change of circumstances as a preliminary matter on the papers, or with limited cross examination, or proceeds to a full hearing is a matter within the discretion of the trial Judge.
From our examination of the transcript we accept there was no unequivocal concession by counsel for the mother that the trial Judge should conduct a threshold enquiry limited to the two (or the four changed circumstances identified by the father’s counsel - the other asserted changes being that the mother had obtained employment, and that the child’s name had been changed). However, in exchange between counsel and the trial Judge, his Honour clearly outlined the course which, having read the relevant material identified by the parties which included the judgment of Dessau J of 23 November 2005, the judgment of the Full Court of 9 August 2006 and evidence of the husband’s expert on Korean law, Mr J, he could, in the exercise of his discretion, undertake. That was, to deal with the matter summarily on the evidence then before him. Counsel for the mother, whilst urging the mother’s position, agreed that course was open to the trial Judge (transcript 21 September 2006, p 36).
Asserted error in failure to appoint an Independent Children’s Lawyer
We now turn to consider the mother’s submission the trial Judge was in error in not appointing an independent children’s lawyer. We accept that in the guidelines promulgated in Re K (supra) the appointment of a separate representative (now an independent children’s lawyer) is considered appropriate in the case of an application for permanent removal of a child (usually Australian) from the jurisdiction.
We do not underestimate in any way the importance of the role of the independent children’s lawyer, and the assistance provided to the Court in the areas identified in Re K (supra). However, in this case where both parties were represented by highly experienced and competent lawyers, who had on the wife’s part adduced evidence of an expert psychologist to support her assertions about the need for a Family Report, we are not satisfied that an independent children’s lawyer was essential to ensure matters relevant to the child’s welfare were properly placed before the trial Judge, particularly given the scope of the identified changed circumstances. It follows we do not accept the trial Judge fell into appealable error in failing to adjourn the hearing and to appoint an independent children’s lawyer.
Asserted error by failure to order a Family Report
The mother’s amended application sought an order for the preparation of a Family Report. The mother relied on the evidence of Mr VP, psychologist, in support of that application.
We note that in the Korean proceedings a welfare report had been commissioned to investigate issues raised by the parties including the mother’s allegations of domestic violence, and the reporter had the benefit of interviewing both parties. That report was before Dessau J in October 2005.
The trial Judge dealt with the issue of the appointment of an independent children’s lawyer and a Family Report in his reasons of 28 September 2006 as follows “[s]uch a course has within it however, as I discussed with him, [the wife’s counsel] easily identifiable problems such as the Independent Children’s Lawyer assessing the husband’s position in Korea and a fair and well balanced provision of a family report in the circumstances of disparate international borders and culture before the court.” We find much merit in his Honour’s reasoning, and are not satisfied of any appealable error in the exercise of discretion by his Honour in refusing to order a Family Report.
Other grounds of appeal
In considering the mother’s proposed grounds of appeal the trial Judge noted:
6. … the wife's professional advisers have, with the greatest of respect gone well beyond the parameters of the argument that took place before me on 21 September 2006 when taken in the context of the judgment of Dessau J on 23 November 2005, the orders made by her Honour and the dismissal by the Full Court of the wife's appeal following its judgment of 9 August 2006.
7. The grounds relied upon appear to include issues that were not argued before me and are well beyond those defined and agreed upon by counsel for my consideration. The judgment of the Full Court delivered 9 August 2006 found no error on the part of Dessau J dealing in the manner she did when considering [JWL]'s best interests by summarily ordering the return of the child to Korea. It is also to be recalled that the wife made application to adduce further evidence before that court which included her then newly-stated position that she would not return to Korea. Her application was rejected for the reasons stated by the Full Court and to which I referred in my judgment of 28 September 2006.
His Honour carefully set out the arguments of both parties’ counsel before him, and adopted the arguments advanced on behalf of the father. We find it useful to set out some of the arguments of counsel as recorded by the trial Judge. His Honour recorded:
11. Significantly, in his written submissions, Mr [W] had this to say at paragraph 3:
‘The appeal is based on substantial grounds. The wife's notice of appeal sets out many grounds, most of which are fundamental challenges to the approach that was adopted, and those grounds traverse issues as important as whether the child should have been separately represented, whether there should have been a summary or fuller hearing, whether the ‘change of circumstances’ test was correctly applied, and whether the effects and impact upon the child were properly considered and evaluated.’
…
15. Mr [W] submitted that the consequences for [JWL] of granting or refusing a stay must be borne in mind, considered and weighed, referring to JRN & KEN v IEG and BLG (1998) 72 ALJR 1329 per Kirby J at p 1332. He pointed out that the effect of refusing a stay in the proceedings before me would see [JWL] immediately repatriated from the jurisdiction of the court and with ‘no enforceable mechanism for his return’, in which case the wife's appeal would then become futile and any successful outcome of her appeal would be rendered nugatory. In those circumstances, he submitted that the appropriate test was whether the wife's appeal had ‘no prospects of success’, or, put another way, as he said in argument, it had to have ‘substantial grounds’ with a prospect of success.
16. Mr [W] submitted that the appeal was bona fide and that there was no evidence upon which to conclude that it was a mere delaying tactic. He pointed out that the appeal was the third brought by the wife and then went through the various appellate processes before this court preceding the case being argued before me on 21 September 2006.
17. Mr [W] relied upon the fact that it remained ‘true’, (to use his words) to say, as the Full Court noted on 21 August 2006 that ‘there has not been a hearing on the mother's case on the merits’.
…
18. Mr [W] submitted that to rely upon the fact that the wife benefited from delay, in that she relied upon the effluxion of time as part of her claim of changed circumstances, was ‘not a sound or sufficient basis’ for concluding that her appeal was a ‘mere delaying tactic’ as it failed to establish a lack of bona fides, nor did it meet or contradict her contention that she sought a hearing on the merits, including an assessment of the impact upon [JWL] of the effluxion of time.
The trial Judge also noted he had received the benefit of written submissions from senior and junior counsel for the father. His Honour said:
21. When dealing with the nature of the proceedings before me on 21 September 2006, Mr [G] submitted, and correctly in my view, that the issue for my determination as defined by both himself and Mr [W], was whether there had been ‘sufficient change of circumstances’ since the judgment of Dessau J delivered 23 November 2005 wherein her Honour found:
“… ‘upon the evidence before her’, that it was in the best interests of [JWL] that a summary order be made for his return to Korea where the issues in dispute between the parties about his custody should be determined.”
(Par 5 of my judgment 28 September 2006).
22. Mr [G] pointed out, and correctly, that the Full Court was satisfied on 9 August 2006 that her Honour did not err in making that finding. It was submitted that in the context of [JWL]'s best interests the subject matter in the present proceedings was whether there were ‘sufficient changed circumstances’ since the order of Dessau J to justify that the proceedings should now continue and be heard in Australia. He pointed out that he had submitted to me on 21 September 2006 that the correct approach was to follow the principles set out in Rice v Asplund (1979) FLC 90-725, and King v Finneran (2001) FLC 93-079 and that Mr [W] had conceded those principles were the correct applicable principles, and further, that the recent amendments to the Family Law Act 1975 did not affect or detract from them. (See paragraphs 5 and 6 of my judgment).
23. Mr [G] submitted that an analysis of the Notice of Appeal demonstrated that the wife sought to rely upon matters [for example, paragraphs 2(1) to 2(8), 2(10), 2(11) and 2(12)] that were not required to be determined once both he and Mr [W] had identified the parameters of the dispute and the applicable principles for my determination. It was submitted by Mr [G] that the thrust of the wife's Notice of Appeal was to argue that the proceedings should have been determined according to principles different from those identified and accepted by both counsel at the hearing before me.
…
28. In his conclusion, Mr [G] submitted that there were no ‘substantial grounds’ or any real prospect of success of the wife's Notice of Appeal, and in that context her appeal should be seen as a ‘mere delaying tactic’ to avoid having a determination of [JWL]'s welfare in Korea. As to the present circumstances of the child, it was submitted that it was not open to me on the present application for stay of my orders to find that the present circumstances of [JWL] were satisfactory when on three separate occasions the court had found that his best interests were served by his return to Korea and the matter being litigated in that country.
His Honour concluded:
38. I do not see the wife’s proposed appeal to be based on substantial grounds at all. The issues for my determination were clearly defined by counsel on 21 September 2006 and, with respect to the wife's position, she has failed, and demonstrably so.
The asserted first “changed circumstance” – the settled environment
The first “changed circumstance” relied on by the mother was that the child is now settled in Australia, and that the effluxion of time is itself a changed circumstance. We note that the question of the child living in a settled environment in Australia was the basis of substantial argument before Dessau J both in the hearing before her on 19 October 2005, and again on 16 August 2006. The weight afforded by Dessau J to the child’s living arrangements was considered by the Full Court in their reasons delivered on 9 August 2006 when their Honours found no error of discretion on the part of the trial Judge in weighing relevant factors under the then s 68F(2).
Whilst we accept as correct the submissions made by counsel for the mother that the Full Court considered no error by Dessau J as at 25 November 2005, and that the relevant period to assess any change was on and from that date, it is relevant to note no change was found by Dessau J in August 2006.
In his reasons for judgment delivered 28 September 2006 the trial Judge referred to Dessau J’s reasons delivered 16 August 2006 and noted that the changed circumstances referred to by counsel for the mother before her Honour “were essentially in the same form as argued before me on 21 September 2006” (paragraph 9).
The trial Judge carefully recorded in his reasons delivered on 28 September 2006 the mother’s evidence of changed circumstances including her assertion that the child, whom she referred to as D, had “‘changed dramatically’” from November 2005 in that he was now a school boy engaged in a range of extracurricular activities. His Honour also discussed the report of Mr VP, and the instructions provided to him. His Honour, appropriately in our view, set out a number of criticisms of the report and noted that “there is nothing about the effect, if any, upon [JWL]’s best interests arising from [the mother’s] stark removal of him from his primary carer and Korean heritage to an alien culture and environment nor any reference to her subsequent conduct in failing to advise the husband of the child’s whereabouts for approximately ten months”. His Honour also had careful regard to the father’s evidence about his proposals for the child on his return to Korea.
His Honour set out in some detail the submissions of counsel for the mother about the child being more settled in Australia, having lived in this country for some 27 months, and that in such circumstances it was no longer appropriate to have a summary hearing. We think it appropriate at this point to observe that the mother agreed a summary hearing was an appropriate way to deal with the matter before Dessau J in October 2005, and her counsel conceded disposition of the matter in a summary manner may be appropriate after the appointment of an independent children’s lawyer and provision of a Family Report (transcript 21 September 2006, p 6).
The trial Judge commented on the course of this litigation in his judgment of 2 October 2006 as follows:
14. … In any event, the dye was cast as to the manner in which the wife's case was to progress and did progress through this court, and in particular, following the arguments before her Honour on 9 [sic] October 2005, her judgment and the direction taken by her professional advisors on appeal.
We accept the thrust of his Honour’s comments. As we have already noted from our examination of the transcript before his Honour on 21 September 2006, whilst counsel for the mother submitted an independent children’s lawyer should be appointed, and a Family Report prepared, and maintained that position throughout the hearing, he did not demur from the proposition when raised by the trial Judge that one approach his Honour could adopt was that the matter should be heard on a summary basis.
Whilst we are not convinced, having regard to the position consistently maintained by the mother’s counsel, that the mother is seeking on this appeal to change her case from that advanced before the trial Judge, and it is not appropriate that she do so (see Coulton v Holcombe (1986) 162 CLR 1 at 7), we are satisfied it was plainly open to the trial Judge, in the exercise of his discretion, to determine the matter on a threshold basis. We also do not accept the mother’s appeal was not brought bona fide. However, we are satisfied overall that the trial Judge’s finding in this respect did not vitiate his exercise of discretion. What was relevant, and taken into account by the trial Judge was the effect of delay in determining issues relative to the child on the child himself.
We are unable to discern any error by the trial Judge in his rejection of the child’s present living arrangements, as opposed to his living arrangements in November 2005, as constituting “changed circumstances” requiring a full hearing on the merits.
We accept that this small boy has, in his short life, lived with his parents in an intact family, thereafter lived with his father as his primary caregiver for a period of approximately one and a half years, and then lived with his mother in Australia with some contact to his father for the past 27 months. Whilst a return to Korea for proceedings to be determined in that country is another change for this child it was a change found by both Dessau J and the trial Judge to be in his best interests. His Honour was acutely conscious that the refusal of the stay would result in the return of the child to Korea. He had due regard to, and distinguished on the facts of this case, the authorities dealing with maintenance of the status quo for a child pending a hearing. In considering the effect of the refusal of a stay the trial Judge balanced the effect of the immediate return of the child to Korea for the Korean courts to determine the parenting issues and his present circumstances, and had regard to the following factors:
· the wife’s grounds of appeal did not demonstrate prospects of success;
· it would be inappropriate to infer the courts of Korea could not deal “appropriately, fairly and expeditiously” with the issues (including the time the child had spent in the care of the mother);
· the father’s prior care of the child for a period of one and a half years;
· the father’s educational qualifications; and
· the extended family support available to the father and child in Korea.
We are satisfied those were matters properly taken into account by the trial Judge in the exercise of his discretion.
The asserted second “changed circumstance” – the mother’s non return to Korea
The second changed circumstance raised by the mother was her stated intention not to return to Korea. The basis for the mother’s stated intention was her knowledge of a warrant for her arrest in Korea, which warrant had been suspended on the basis the mother’s whereabouts were unknown.
The only admissible evidence on the question of the criminal charges brought against the mother was that of Mr J, the father’s expert witness. The trial Judge noted that the mother relied on “hearsay and inadmissible documentation concerning the position in relation to that country” and further “… I did not regard her untested statement based on untested and questionable material as particularly convincing”. His Honour referred to Dessau J’s statement, as it appears from the transcript of 16 August 2006 (which we note was provided to his Honour), that her Honour had said the issue of whether the mother would return to Korea was a continuing one “in the ‘sense that it was central’” to her earlier decision.
In his reasons delivered on 28 September 2006 the trial Judge referred to the submission made by senior counsel for the father about the lack of relevant expertise of Mr BK, the mother’s expert in Korean law, to give evidence about either family law or criminal law in Korea.
His Honour concluded:
46. It was the submission of Mr [G] that the affidavit of [Mr J] filed 14 September 2006, to which I have earlier referred, was the only useful evidence dealing with the legal situation in Korea. He pointed out that it was the unassailed opinion of Mr [J] that upon making a final order, the prosecutor’s office would need at least ‘two or three days’ to process such an order and have the wife removed from the Watch List. It is thus open to conclude that upon the husband returning to Korea with [JWL], withdrawing his criminal complaint, and following the effluxion of two or three days to process a final order, it is unlikely that the wife would later be taken into custody. (footnotes omitted)
As we have already recorded the only admissible evidence before the trial Judge about the likelihood of the mother facing criminal charges and detention was that of Mr J. The trial Judge accurately set out in summary form the submissions of the father’s senior counsel on Mr J’s evidence.
The father’s senior counsel submitted in the course of oral argument before the trial Judge that the mother would not necessarily face being placed into custody, but rather after the child was returned to Korea a process, which could take two or three days to implement, would result in an order removing the mother from the watch list so that there would be no arrest or detention of the mother. He drew the trial Judge’s attention to paragraphs 11 and 12 of Mr J’s affidavit. We find it useful to set out those paragraphs as well as paragraphs 8 and 9 of his affidavit:
8. However, should [the father] withdraw his support of the criminal complaint and should the child be returned to Korea, the possibility of a criminal Indictment against [the mother] is extremely low. This is especially the case in Korea in respect to a family related crime arising from a domestic dispute.
9. Under the Korean Criminal Law system, the prosecutor has a discretionary power not to indict in certain conditions, this is called ‘the suspension of indictment’ and is common in family related crimes or crimes arising from a domestic dispute.
…
11. Should the prosecutor decide to continue with the prosecution against [the mother], the possible term of [the mother]’s imprisonment is from 1 month to 10 years pursuant to the Criminal Code Article No. 287. It is extremely unlikely that the prosecutor will decide to continue the indictment should [the father] withdraw his support for the criminal complaint and the child be returned to Korea.
12. Under the Korean Criminal system it is extremely rare to sentence the maximum imprisonment term to the accused in any case. 10 years is the maximum term for the crime of abduction. It is more likely that with [the father]’s withdrawal of the criminal complaint the police will decide not to prosecute. In the event that the worst case happens and the police decide to prosecute, the court is likely to sentence her to imprisonment with the condition of a suspension of the execution of the order. [The mother] would not go to jail.
On that evidence, being the only admissible evidence before the trial Judge of the likely consequences to the mother on a return to Korea, we discern the mother could not maintain, on any objective criteria, any substantial objection to return to Korea shortly after the child’s return to that country on the basis that she would face imprisonment. Consequently, we are satisfied that his Honour was correct in determining the mother’s stated intention not to return to Korea could not, considered objectively, be a “changed circumstance”. We think at this point it is worth noting the mother’s position on return to Korea was undetermined when the case was first heard by Dessau J, who concluded she could not be certain the mother would face criminal proceedings if she returned, but nevertheless, on balance, found it was appropriate the child should be returned to Korea.
We note whilst in the first stay appeal appropriate concern was raised by the Full Court about the lack of enforceability of undertakings proffered by the father, before us the father’s senior counsel argued the father would provide to the mother before he left Australia a letter signed by him addressed to the prosecutor’s office in Korea seeking withdrawal of the charges.
The asserted failure to consider the collective effect of the changes
The mother’s counsel submitted the trial Judge had not considered the collective effect of the two changed circumstances relied on by the mother.
As we indicated to the mother’s counsel during the hearing, it appeared to us that the real issue the mother sought to agitate was the potential consequence, if it occurred, of separation of the child, not from his environment in Australia, but the child’s potential separation from her. The trial Judge addressed this issue in his assessment of the child’s best interests, and balanced that important consideration against the benefits to the child of a return to Korea, the further delay which would be occasioned if he granted the stay with no prospects of success of the substantive appeal, factors his Honour found could not be in the child’s best interests. In so doing as we have already noted his Honour had regard to the child’s previous stability whilst in the care of the father for one and a half years after the parties’ separation, his dislocation from his culture by his unilateral removal by the mother, and the ability of the Korean courts to take into account in assessing the child’s best interests the period of time he had spent in the care of his mother whilst in Australia.
In his reasons published on 28 September 2006 the trial Judge had careful regard to the reasoning of Baroness Hale of Richmond in In re J (a child) (Custody Rights: Jurisdiction) [2006] 1 AC 80; [2005] 3 WLR 14; [2005] UKHL 40 and found that, in the circumstances of this case, and the manner in which it was run before her, Dessau J’s order for the return of the child was not an “‘automatic reaction’”, but rather a carefully reasoned, realistic and unsentimental assessment of the child’s best interests. Having found no change of circumstances, his Honour also found it was in the child’s best interests that the mother’s application for interim orders should be dismissed, and the child returned to Korea.
Whilst the trial Judge did not explicitly refer to the collective effect of the two asserted changed circumstances, we are satisfied his Honour’s reasons of 2 October 2006 when read in conjunction with his comprehensive reasons of 28 September 2006 reveal no error in the exercise of his discretion.
Whilst we are conscious that the Court will always consider the best interests of the child rather than seek to punish a parent who has unilaterally removed a child from overseas, (see In re L (Minors) (Wardship: Jurisdiction) [1974] 1 WLR 250 at 265 and Re R (Minors) (Wardship: Jurisdiction) (1981) 2 FLR 416 at 425) we have due regard to the force of the public policy argument advanced by senior counsel for the father, which argument was clearly considered by the trial Judge and was, we accept, relevant to the exercise of his discretion.
CONCLUSIONS
Prior to the commencement of our discussion, we noted that this was an appeal against a discretionary judgment, and highlighted the relevance in this case of the principle that each case dealing with a stay must be determined in the light of its own circumstances. We are satisfied given the history of this matter that the trial Judge was not in error in giving a much closer examination to the likely success of the grounds of the substantive appeal than would ordinarily be the case on an application for a stay. Whilst the refusal of the stay, and the dismissal of this stay appeal may on the one hand be seen to render a successful appeal nugatory, we consider the careful appraisal by the trial Judge of the grounds of appeal, and his conclusion the appeal would be unsuccessful and create further delay contrary to the child’s best interests, negates such a scenario.
We are satisfied there was no appealable error by the trial Judge in the exercise of his discretion in dealing with the asserted change of circumstances as a threshold issue, nor in his determination no significant change of circumstance was established. We are further satisfied that his Honour properly addressed and weighed the factors relevant to the exercise of his discretion including the hardship which would be suffered by either party as the result of the grant or refusal of the stay, and the delay before the appeal could be heard. Consequently we were satisfied the appeal should be dismissed.
Costs
At the conclusion of the hearing before us, we sought submissions from the parties on costs. The mother’s counsel effectively conceded in the event the appeal was dismissed that the mother should pay the father’s costs as agreed or assessed. We propose to so order.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 13 October 2006
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