Eyers and Eyers
[2009] FamCAFC 140
•3 August 2009
FAMILY COURT OF AUSTRALIA
| EYERS & EYERS | [2009] FamCAFC 140 |
| FAMILY LAW - APPEAL – Judgment from Federal Magistrate allowing Mother to apply for Australian passport and travel to Turkey with the child – family violence - Father appearing unrepresented and with Turkish interpreter – risk of harm if travel allowed – fears Mother will not return to Australia – no criticism of Federal Magistrate reasons - no appellable error established - appeal dismissed |
| Family Law Act 1975 (Cth) |
| House v The King (1936) 55 CLR 499 Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Eyers |
| RESPONDENT: | Ms Eyers |
| FILE NUMBER: | PAC | 1556 | of | 2009 |
| APPEAL NUMBER: | EA | 80 | of | 2009 |
| DATE DELIVERED: | 3 August 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 31 July 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 14 July 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 761 |
REPRESENTATION
| THE APPELLANT: | Father in Person |
| COUNSEL FOR THE RESPONDENT: | Mr Schroder |
| SOLICITOR FOR THE RESPONDENT: | Lamrocks Solicitors |
Orders
The appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Eyers & Eyers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2009
File Number: PAC 1556 of 2009
| MR EYERS |
Appellant
And
| MS EYERS |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal by Mr Eyers (“the Father”) against orders made on 14 July 2009 by Federal Magistrate Dunkley allowing Ms Eyers (“the Mother”) to apply for an Australian passport for the child of the marriage, W, and to take the child to Turkey from 5 August to 16 September 2009 inclusive.
The Father appeared without legal representation and the Mother was represented by a solicitor.
BACKGROUND
The Father was born in 1949. The Mother was born in 1970.
The Father has three adult children. The Mother has a daughter, B, from a previous marriage, who was born in December 1997.
In 2002 the Mother separated from the father of the child B and at that time she was living in Turkey. The child B resided with the Mother. I observe that in a document handed to me by the Father at the commencement of the hearing he contended that the Mother “was married two times before”. In relation to this document it was objected to by counsel for the Mother and I treated it as a form of written submission by the Father.
In 2003 parenting orders were made in Turkey allowing the Mother and the child B to live in Australia, provided that the Mother return to Turkey each year for a month with the child B.
In August 2003 the Father and the Mother were married in Turkey.
In January 2006 the Father and the Mother moved from Turkey to Australia with the child B.
In April 2006 the child W was born.
In May 2006 the parties separated. The child W, who was less than two months old, remained in the care of the Mother.
After separation, for a period of time, the Mother and the children resided in a Women’s Refuge.
The Father did not see the children for nine months after separation.
In June 2006 a final apprehended violence order was granted for two years protecting the Mother and restraining the Father.
In September 2006 the Mother and the child B were granted permanent residence visas in Australia.
On 12 December 2006 the Mother filed an Application for Final Orders with the Federal Magistrate Court in Parramatta.
Interim parenting orders were made on 6 March 2007 in relation to the Father spending time with the child W. On 3 May 2007 further interim parenting orders were made providing for the Father to spend time with the child W at a contact centre. On 12 December 2007 interim parenting orders were made providing for the Father to spend time with the child W at a different contact centre.
There was in evidence before the Federal Magistrate two Family Reports. The first Family Report is dated 15 November 2007. The Family Consultant who prepared the report conducted interviews on 12 November 2007. However the Father was not interviewed as he was overseas. The Father told the Family Consultant that he went overseas in late 2007. In cross-examination on 14 July 2009 the Father said that he went overseas because his niece was getting married and also his brother was ill.
The Father was imprisoned between February 2008 and April 2008 for breaching an apprehended violence order.
The second Family Report is dated 25 August 2008. In the report the Family Consultant said that soon after the birth of the child W the parents separated and the child had no involvement with the Father for at least nine months. Then when the child was about the age of 10 months the parents reconciled but separated after three months. The Family Consultant said thereafter that the child had very little contact with the Father until about May 2008. The Family Consultant said that since the birth of the child W she has had minimal involvement with her Father and the Mother has been the primary carer. The Family Consultant described the Mother as the primary attachment figure and was of the opinion that if the child W was to live with the Father the emotional development of the child would be damaged by the absence of the Mother. However the Family Consultant also said that it was apparent that the child’s relationship with her Father was developing and becoming more substantial and for this reason a graduated program of involvement between the child and the Father that might lead to the child spending weekends with the Father was suggested.
The proceedings were concluded on 9 September 2008 when the following final orders were made by consent by Halligan FM:
1.That the child [W] born [date] April 2006 (the child) live with the mother.
2.That the mother shall have sole parental responsibility for the child.
3.That in the exercise of sole parental responsibility the mother shall consult with the father and notify him of any decision she proposes to make in relation to the following issues concerning the child: -
a) Matters relating to the education of the child;
b) Matters relating to the child's health; and
c) Matters relating to the religious upbringing of the child.
4.That the child shall spend time with the father as follows: -
a) For a further 8 visits following the date of these Orders on a monitored basis to be conducted at [Western Sydney] Children's Contact Service at such times as the Service can facilitate;
b) Thereafter, for 12 weekly visits for a period of 3 hours as agreed, and failing agreement from 11 am to 2pm Saturday to take place at McDonald's, [M] with the mother at liberty to remain in the vicinity of McDonald's provided that she does not interfere with the father's time and the father is restrained from approaching and/or harassing the mother;
c) Thereafter, for 16 weekly visits from 11am to 5pm as agreed between the parties and failing agreement each Saturday;
d) Thereafter, for 8 fortnightly visits from 11am to 5pm Saturday and from 11am to 5pm Sunday on the same weekend;
e) Thereafter, each alternate weekend from 11 am Saturday to 5pm Sunday for 8 occasions,
f) Thereafter and until the child commences school, each alternate weekend from 5pm Friday to 5pm Sunday;
g) From the time child commences school each alternate weekend from the conclusion of school Friday to the commencement of school Monday;
h) During the first short school holiday period (April) in 2011 for a period of 5 days/4 nights as agreed between the parties to commence at 11 am on the first day and concluding at 5pm on the last day;
i) During the second short school holiday period (June/July) in 2011 for a period of 6 days/5 nights as agreed between the parties to commence at 11 am on the first day and concluding at 5pm on the last day;
j) Thereafter, for one half of each short school holiday period, except Christmas holiday period, alternating between the first half in 2011 and each alternate year thereafter and the second half in 2012 in each alternate year thereafter;
k) Commencing in the Christmas school holiday period in 2011/2012 for one half of the said school holiday period on a week about basis commencing in the second week of the school holiday period in 2011/12 and commencing in the first week in 2012/13 and each alternate week thereafter;
l) From the Christmas school holiday period in 2013/14 and thereafter for one half of each school holiday period being the first half in 2014/15 and each alternate year thereafter and the second half in 2013/14 and each alternate year thereafter;
m) From 11 am to 5pm on Father's Day in the event the child is not otherwise spending time with the father;
n) That the father's time is suspended from 11 am to 5pm on Mother's Day in the event the child is due to/or is spending time with the father;
o) Commencing in 2009 and each year thereafter from 11 am to 5pm on the second day of the first Bayram feast and from 11 am on the second day to 5pm on the third day of the second Bayram feast;
p) At any other times as the parties may agree.
5.For the purposes of the father spending time with child pursuant to the Orders 4(c) to (p) above the father shall collect and return the child to and from the mother's residence.
6.For the purposes of the parties communicating in relation to matters concerning the child each of the parties are at liberty to communicate with each other by phone provided that each party is restrained from denigrating, threatening and/or harassing the other party.
7That the father is restrained from approaching the mother except of the purposes of implementing these Orders and is further restrained from assaulting, threatening or harassing the mother.
8.That the mother and the father, by themselves, their servants or their agents are restrained from removing or attempting to remove the child from the Commonwealth of Australia.
9.The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and/or the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
10.That the Commissioner of the Australian Federal Police and the Secretary of Ministry of Immigration take all necessary steps to immediately place the said child's name on the airport watch list, also known as the PACE Alert System, at all points of arrival and departure in The Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the child on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
11.That the Australian Federal Police and the Police Force of the States and Territories of the Commonwealth of Australia assist in the implementation of and give effect to, these Orders.
12.That pursuant to S65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Annexure "A" attached hereto and these particulars are included in these Orders.
The Mother contended that in early November 2008 she asked the Father if she could take the child W to Turkey to see her family and the Father said that he would only give permission if the Mother lifted the apprehended violence order.
The Mother contended that in March 2009 she asked the Father if she could take the child W to Turkey for three months and the Father said that he would only let her take the child if she agreed to three conditions. First, the Mother lifted the apprehended violence order. Second, that he have custody of the child. Third, the parties reconcile. In cross-examination on 14 July 2009 the Father admitted that he did put the first two conditions to the Mother. I observe that in an affidavit sworn on 6 July 2009 the Father contended that he suggested to the Mother that the parties reconcile.
The Mother contended that on many occasions she asked the Father if she could take the child W overseas and each time the Father refused and said that he would not let the Mother take the child out of the country or that he would not let her do so unless she reconciled with him.
The Mother contended that in late March 2009 she told the Father that she was seeing a lawyer in relation to taking the child W overseas. The Mother contended that she again asked the Father if she could take the child overseas and that she told him that if he would not allow her to do so then she would seek permission from the Court to do so.
On 3 April 2009 the Mother filed an application for final orders with the Federal Magistrate Court in Parramatta seeking the following final orders:
1.That the Applicant Mother have the sole responsibility for giving consent and making arrangements for the issue of a passport to the child [W] (Female) born [date] April 2006 (“the child”).
2.That the Applicant Mother have the sole responsibility for making decisions in relation tot eh child’s travel outside of Australia.
3.That the child be permitted to leave Australia on 1 occasion in each year for a period of time not longer than 3 months at dates and times suitable to the mother for the purpose of a holiday to Turkey and Orders 4, 8 and 10 of Orders made 9 September 2008 be suspended during this time to allow the child to leave and return to Australia.
4.That the Applicant Mother will provide to the Respondent Father 14 days prior to travel an itinerary containing as many details as possible of the proposed travel plans during periods when the child is overseas.
The Mother also sought the following interim orders:
1.That the Applicant Mother be granted leave to serve this Application with short notice on the Respondent Father.
2.That the Applicant Mother have the sole responsibility for giving consent and making arrangements for the issue of a passport to the child [W] (Female) born [date] April 2006 (“the child”).
3.That the child be permitted to leave Australia between Wednesday 5 August 2009 and Thursday 5 November 2009 for the purpose of a holiday to Turkey.
4.That Orders 4, 8 and 10 of Orders made 9 September 2008 be suspended to allow the child [W] (Female) born [date] April 2006 to leave Australia on Wednesday 5 August 2009 and return to Australia on Thursday 5 November 2009.
5.That the Applicant Mother will provide to the Respondent Father 14 days prior to travel an itinerary containing as many details as possible of the proposed travel plans during periods when the child is overseas.
On 3 April 2009 an affidavit was sworn by the Mother.
The Wife filed an amended application on 2 July 2009 in which she sought the following orders:
1.That the Applicant Mother have the sole responsibility for giving consent and making arrangements for the issue of an Australian passport to the child [W] (Female) born [date] April 2006 (“the child”).
2.That the Applicant Mother have the sole responsibility for making decisions in relation tot eh child’s travel outside of Australia.
3.That the child be permitted to leave Australia between Wednesday 5 August 2009 and Thursday 5 November 2009 for the purpose of a holiday to Turkey.
4.That Orders 4, 8 and 10 of Orders made 9 September 2008 be suspended to allow the child [W] (Female) born [date] April 2006 to leave Australia on Wednesday 5 August 2009 and return to Australia on Thursday 5 November 2009.
5.That the child be permitted to leave Australia on one (1) occasion every three (3) years for a period of time not longer than three (3) months at dates and times suitable to the mother for the purpose of a holiday to Turkey and Orders 4, 8 and 10 of Orders made 9 September 2008 be suspended during this time to allow the child to leave and return to Australia.
6.That the Applicant Mother will provide to the Respondent Father not less than 14 days prior to travel an itinerary containing as many details as possible of the proposed travel plans during periods when the child is overseas.
The Mother did not seek any interim orders.
On 4 June 2009 the Father filed a Response to the Mother’s application for final orders. The Father filed an affidavit supporting his Response. The affidavit of the Father was sworn on 4 June 2009. The Response and affidavit were prepared by solicitors. The Father sought that the Mother’s application be dismissed and the Mother pay the Father’s costs of the proceedings.
The Father contended that prior to the orders of 9 September 2008 the Mother was aware that her mother and grandmother were unwell and required surgery, however the Mother agreed to orders that both she and the Father be restrained from removing or attempting to remove the child W from Australia and that the child’s name be place on the airport watchlist.
The Father also contended that he was concerned that if the Mother was permitted to travel to Turkey with both children she would not return to Australia as she had not complied with parenting orders made in Turkey in 2003 in relation to the child B, returning to Turkey each year for not less than one month so as to spend time with her father.
The Father also in his affidavit contended that on numerous occasions the Mother told him that she did not like living in Australia as she did not have any family and friends in this country and that she was lonely. He contended that the Mother did not have any “permanent ties” that would require her to return to Australia. All of the maternal family reside in Turkey. As well the Father said that the Mother does not have any paid employment or permanent housing in Australia.
On 12 June 2009 the Father’s solicitor filed a Notice of Withdrawal of Lawyer.
The Mother gave evidence about a telephone conversation she had with the father of the child B on 21 June 2009 which it is not necessary to repeat in these reasons.
On 22 June 2009 the matter was set down for hearing before Dunkley FM. On that day, over the objection of the Mother’s solicitor, the Federal Magistrate adjourned the hearing at the request of the Father as his solicitors had withdrawn on 12 June 2009 and he wished to instruct new lawyers. The Federal Magistrate adjourned the hearing to 14 July 2009.
On 2 July 2009 an affidavit was sworn by the Mother.
The Mother deposed that she had booked three tickets for herself and the two children to travel to Turkey leaving Australia on Wednesday 5 August 2009 and returning to Australia on Thursday 5 November 2009. She was required to pay for the tickets by 22 July 2009. The total cost of the three return tickets was $5,330.00. The Mother deposed that her mother offered to pay all airfares and was obtaining a loan for the amount to do so.
The Mother contended that the purpose of the travel for herself and for the two children was to see her family and for the child W to meet the maternal family for the first time. The Mother gave evidence that the last time she and the child B saw the maternal family was approximately three years and five months ago.
The Mother also said that the purpose was to enable the child B to spend time with her father. The Mother also said that she would like to have the support of her family around her as she found the litigation in relation to parenting of the child W very stressful.
The Mother contended that she is particularly close to her grandmother and mother. When the Mother lived in Turkey she was living with her grandmother and she saw her mother and stepfather every day. Her stepfather passed away in about early 2007. The Mother said that her grandmother is 83 years old and has problems with her stomach and also a heart condition and in about February 2008 was hospitalised for some time. The Mother contended that she is closer to her grandmother than her mother and that she was raised by her grandmother from when she was about two years of age. The Mother also contended that her Mother has a heart condition and requires an operation. The maternal grandmother has also never met the child W.
In cross-examination on 14 July 2009 the Father conceded that “it would be nice” if the child W saw members of the maternal family. He also conceded that it would be “nice” if the child saw her maternal great-grandmother.
The Mother also has two sisters aged 35 and 28 years who live in Turkey.
The Mother contended that she frequently keeps in contact by telephone with her family in Turkey and sometimes speaks with them four or five times a week. The Mother contended that both children also speak on the telephone to members of the maternal family as both children can speak Turkish.
The Mother deposed that if she was allowed to travel to Turkey with the children she intended to stay with her mother. She disclosed in her affidavit of 2 July 2009 the address of her mother’s residence which she said was located approximately by a one hour and 15 minute bus trip from an airport in West Turkey. She attached to her affidavit a copy of a map of Turkey on which the township in West Turkey was marked. The Mother deposed that the Father has been to her parent’s house before and is aware of where they and other members of the maternal family live.
The Mother said that she would be prepared to provide a copy of her itinerary and a contact telephone number where she and the children will be staying in Turkey.
In her affidavit of 2 July 2009 the Mother also gave evidence about her current circumstances and her “ties” to Australia. The Mother and the children reside in a rented two bedroom unit in suburb M. The Mother pays $200.00 per week in rent. The Mother currently receives a parenting payment and family tax payment from Centrelink of approximately $1,050.00 - $1,100.00 each fortnight. The Mother receives approximately $27.00 each month in child support from the Father.
The Mother contended that she has a very good support network around her in Australia. She has a support worker at Barnardo’s who is assisting the Mother locate long term housing and who in about October 2008 assisted her to apply for priority housing through the Department of Housing. The Mother intends to continue to reside in the M area and she explained that in that area there are many Turkish people and a Turkish community which provides her with support.
The child B attends M North Public School and is in year six. The Mother contended that the child is progressing well at school. The child is enrolled at
M Girls High School for year seven commencing in 2010. The child W attends a family day care centre through Barnardo’s for three days a week. In cross-examination on 14 July 2009 the Father admitted that he was aware that the child B goes to M North Public School and that the child “likes” school.
The Mother said that she intends to return to Australia with the children at the conclusion of the holiday. The Mother enjoys living in Australia and she deposed that she believes the children have a better future in Australia and can enjoy a better education.
On 6 July 2009 the Father swore an affidavit which he prepared himself.
On 14 July 2009 the hearing proceeded before Dunkley FM. The Father appeared without legal representation. However he had the assistance of a translator. During the hearing the Father was cross-examined. However the Father did not cross-examine the Mother.
I have read the transcript of the hearing before the Federal Magistrate and in particular the cross-examination of the Father and his final submissions. Given that the Father was unrepresented and required the assistance of a translator I was of the view that it was important that I carefully read all of the material that was before the Federal Magistrate and not simply rely upon the Father to identify what parts of the material he considered were relevant to his complaints. Considering what the Father said in cross-examination, and in his written material, the impression I gained was that his primary concern was that if the Mother was allowed to remove the child W from Australia she may not return.
The Father also raised an issue about the potential for a “quarrel” in Turkey between members of the maternal and paternal families who reside in that country. Although this was never adequately explained, the impression I gained was that the Father was suggesting that there would be a “quarrel” if members of the paternal family attempted to see the child in Turkey. I gained the impression that there are a number of members of the paternal family who reside in that country. At the conclusion of cross-examination the Father was asked by the Federal Magistrate whether he wanted to give any further evidence “about any answer to any question that you gave that you think is unclear”. The Father then said:
I have concern that if I give permission for my child to travel overseas there could be problem between the families and if my family tried to see the child of if they make an issue then the other side could make it a bigger problem. That’s what my concern is. I mean her ex-husband’s family. I am also concerned about that. If it is up to them I would like not to give permission for my child to travel overseas until the age of 16 and again if it is possible, I would like to take custody of my child. Otherwise, if she takes the child she will always…
The Father also made clear that he was prepared to give permission for the Mother to take the child W overseas but on the basis that he took the child overseas if he was given custody of the child.
On 14 July 2009, at the conclusion of the hearing, the Federal Magistrate made the following orders:
1.[W] (female) born [date] April 2006 is permitted to travel internationally, without the need for the consent of the father to be provided to the issue of a passport to [W] (female) born [date] April 2006.
2.The mother shall be the only person with ‘parental responsibility’ of the child [W] (female) born [date] April 2006 for the purposes of applying for, and being issued with, an Australian passport for [W] (female) born [date] April 2006.
3.The child [W] (female) born [date] April 2006 shall be permitted to leave the Commonwealth of Australia and travel internationally to Turkey during the period 5 August 2009 to 16 September 2009 inclusive.
4.The father shall have telephone communication with the child as follows:
a) Twice weekly during the period provided for in Order 3 above, on a Tuesday and Friday;
b) The father shall telephone the child on Tuesday some time between 6pm and 7pm (Turkish time);
c) The mother shall cause the child to telephone the father on Friday some time between 11am and 12 noon (Australian Eastern Time);
5.The mother shall provide to the father a complete itinerary of her travel, including the names of airlines, flight details and flight departure and arrival times, and the address and telephone number of the homes in which she and the child will be staying for the duration of her time in Turkey, such itinerary to be provided by not later than 5pm on 27 July 2009.
On 20 July 2009 the Father filed a Notice of Appeal against the orders of Dunkley FM above. The Father is seeking an order that “the orders of FM Dunkley made 14/7/09 be discussed [sic]”. In relation to his Grounds of Appeal he states the following:
1.Without the consent of my permission I do not allow a passport to be issued.
2.As per above I do not wish the passport to be issued.
3.The mothers intension [sic] are to stay longer than the period, 5 August 2009 to 16 September 2009, she has threatened me that “I am going to take my daughter overseas and you are not able to do anything about it. I [the Father] have also mentioned this in court.
4.I [the Father] do not get the opportunity to talk to my daughter as is meaning at this present time. The mother does not allow the child to speak to me and when I do speak to my daughter I ask her “why did you not speak to me she tells me that mum told me not too.
So if my daughter was to go overseas I would not be able to speak to her at all.
5.The information in section 5 does no justice to the reasons why I don’t want my daughter to go. Once my daughter is out of this country I know that everything writen [sic] will be not hered [sic] to by the mother. As I have mentioned [the Mother] has threatened me on a lot of occassions [sic] that she will take my child and not return.
I also fear that if she does not do the orders 4 – 5 my family in turkey as previously stated will get involved and the cultural aspect will fall into place. This means family war and this will place both [the Mother] and [W]’s life, and this is what I fear.
I also would like to mention that the court did not think about the health issues. My daughter is 3 years old and her mother does not have the capibility [sic] to look after her is she gets sick.
If the mother takes my child as I have mentioned I am 100% sure that she will not return nor will she follow the court order herself. Now if this happens I would also like to mention that I do not have the ability to find them whether is be financially or physically. [The Mother] has also done this to her previous husband as the courts in Turkey gave [the Mother] the same type of order as this one but she also kept on running so please look into her background thouroghly [sic] before wrecking a father and daughter relationship.
On 23 July 2009 the Father filed an Application in an Appeal seeking that the hearing of his appeal be expedited. The Father did not file an affidavit with this application.
On 27 July 2009 the application for expedition was listed before me. The Father appeared before me unrepresented and with a Turkish translator. The Mother was represented by her solicitors. The solicitor for the Mother submitted that the appeal should be dismissed as there were no appellable grounds in the Notice of Appeal filed by the Father. During the hearing the Father explained that he did not have the means of preparing any further material or appeal books due to the costs of employing translators and his unhappiness with his previous solicitors. The Mother’s solicitor stated that the onus of preparing appeal books should be borne by the Husband.
At the end of the hearing I made the following orders:
1.The appeal against the orders of Federal Magistrate Dunkley made 14 July 2009 be expedited.
2.The appeal be listed for hearing at 10:00 am on Friday 31 July 2009.
3.That for the appeal the appeal books comprise each of the following documents:
3.1 Notice of Appeal filed 20 July 2009;
3.2 Orders of Federal Magistrate Dunkley made 14 July 2009;
3.3 Reasons for Judgment of Federal Magistrate Dunkley delivered on 14 July 2009;
3.4 Orders of Federal Magistrate Halligan made 9 September 2008;
3.5 Initiating Application filed by the Wife on 3 April 2009;
3.6 Affidavit of the Wife sworn and filed 3 April 2009;
3.7 Response to Initiating Application filed by the Husband on 16 June 2009;
3.8 Affidavit of the Husband sworn 4 June 2009 and filed 16 June 2009;
3.9 Case Outline Document for the Wife dated 18 June 2009;
3.10 Amended Initiating Application filed by the Wife on 2 July 2009;
3.11 Affidavit of the Wife sworn and filed 2 July 2009;
3.12 Affidavit of the Husband sworn and filed 6 July 2009;
3.13 Transcript of Proceedings before Federal Magistrate Dunkley on 14 July 2009;
Exhibits
3.14 Family Reports by [Mr L] dated 15 November 2007 and 25 August 2008 (Exhibits A and B);
3.15 Printout of Hague Convention Countries (Exhibit C).
4.The Appellant Husband and Respondent Mother file and serve his Summary of Argument and List of Authorities with the Regional Appeal Registrar on or before 4:00 pm on 30 July 2009.
5.Each party be at liberty to apply for any further directions to the Honourable Justice O’Ryan (or if not reasonably available to another member of the Appeal Division) upon notice in writing to the other party and to the Regional Appeal Registrar in the Sydney Registry.
6.The costs of and incidental to this hearing be reserved to the Full Court.
7.To the extent these orders do not comply with the Family Law Rules 2004 there be dispensation from such compliance.
IT IS NOTED THAT
8.These directions for the hearing of the appeal are subject to further direction of the Chief Justice.
9.The Appellant Father does not have legal representation and that he will appear at the hearing of his appeal self represented.
10.Arrangements be made for the Appellant Father to have the assistance of a Turkish/English translator.
On 28 July 2009 the Chief Justice made an order that pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) that it is appropriate the appeal be heard by a single Judge. On 31 July 2009 the hearing was listed before me.
The child B has a current Turkish passport which is valid until August 2012 and the Mother has a current Turkish passport which is valid until August 2012.
REASONS OF THE FEDERAL MAGISTRATE
Federal Magistrate Dunkley commenced his reasons by observing at [1] that the proceedings were pursuant to Part VII of the Family Law Act.
The Federal Magistrate at [2] - [5] identified the relevant applications and affidavits. He also said that he had read the two Family Reports prepared by a Family Consultant for previous proceedings. He noted at [5] that evidence was submitted by the Mother evidencing Turkey was a signatory to the Convention on Civil Aspects of International Child Abduction and the address of the Turkish central authority.
The Federal Magistrate at [6] noted that the Father was self represented and had the assistance of a Turkish interpreter. The Federal Magistrate noted that the Father thought that his previous solicitors “had not put into his first affidavit everything that he had wanted” and they were “thereby acting in the best interests of the wife”. The Federal Magistrate said that he “suggested” to the Father that his previous solicitors “were ensuring all relevant information was before the Court and more importantly, that that evidence was presented so as to place him in the best possible position”.
The Federal Magistrate noted at [7] that while the Father was granted an adjournment on 22 June 2009 because he was unrepresented and wished to “instruct new lawyers and place further evidence before the Court”, he was again before the Court unrepresented and “complained” that he had not been able to find a lawyer to prepare a further affidavit, although he had prepared one. The Federal Magistrate noted that the Father did not seek a further adjournment and said that “none would have been granted had he so sought having regard to the directions made on 22 June 2009”.
In his reasons from [8] to [19] the Federal Magistrate gave a brief summary of relevant background facts leading up to final parenting orders made by consent on 9 September 2008. His Honour then said:
19.On 9 September 2008 final parenting orders were made by consent by Halligan FM relating to the substantive parenting proceedings that had been conducted before this Court by the parties for well over 12 months. Those orders provided, amongst other things that, [W] would live with the mother, that the mother would have sole parental responsibility for the child, that she would provide some notice to the father of decisions that she made relating to the child's education, health and religious upbringing.
20.A long phased order was then made for the father to spend time with the child commencing with supervised visits and ending with visits each alternate weekend from after school Friday to before school Monday. The parties are presently at the stage in those orders whereby the child is to spend from 11 am Saturday to 5 pm Sunday on each alternate weekend with the father, that situation having been in existence now for only a matter of weeks.
21.There were also other orders made for school holiday periods once the child commences school and a number of other ancillary orders including particularly an order restraining the father from approaching the mother except for the purposes of implementation of these orders and he is further restrained from assaulting, threatening and harassing her. Additionally, the parties agreed that the child would not be removed from the Commonwealth of Australia and will be placed upon the PACE alert system at all entry and departure points. There was attached to those terms of settlement and orders a certificate of interpretation from the English language to Turkish.
The Federal Magistrate identified the following issues that needed to be determined:
22.Does the decision of Rice v Asplund (1979) FLC 90-725 apply given that the parties consented to a watch list order and a restraint on the removal of the child from the Commonwealth of Australia on 9 September 2008, that is some 10 months ago.
23.Should the mother be permitted to travel to Turkey with [W], and if so for what period should that travel be permitted; and,
24.If permitted to travel, should the mother have sole parental responsibility to apply for an Australian passport for the child.
The Federal Magistrate from [25] to [28] discussed the “Orders Sought” by each party. At [25] he noted that the Mother sought to travel to Turkey from 5 August to November 2009 and that she have sole parental responsibility for obtaining a passport. The Mother abandoned her application that she be able to travel for a three month period every year after the making of the orders.
The Father’s application sought that the Mother’s application be dismissed. The Federal Magistrate at [26] said that in cross-examination the Father said that he would not consent to the child W leaving Australia until she was 16 years of age. Further that the Father “had two alternative positions, neither of which was forcibly put”. The first alternative was that the Mother travel to Turkey with the child B and the child W remain in Australia with the Father. The second alternative was that the Mother and the child W be allowed to travel to Turkey, but only if the Father was permitted to travel and have custody of the child during the period of travel. The Federal Magistrate dismissed both of these propositions.
As to the first proposal of the Father, the Federal Magistrate at [27] observed that the child W had only just begun spending time overnight with the Father and that the Mother is the primary carer “with whom she [the child] has her primary attachment”. As for the second proposal, the Federal Magistrate said at [28] that this was a “recipe for dispute” given, among other reasons, the restraining and apprehended violence orders previously made regarding family violence between the Father and the Mother.
From [29] to [34] of his reasons the Federal Magistrate discussed the “Evidence”. The Federal Magistrate said at [29] that he accepted the Mother’s evidence on an “uncontroverted basis” as the Mother was not cross-examined.
The Federal Magistrate said at [29] that he agreed there had been a change of circumstances “as envisaged by Rice v Asplund (1979) FLC 90-725 that would permit the mother to leave Australia temporarily with [W]”. He then identified those changes.
The “first change” identified by the Federal Magistrate at [29] was that the maternal grandmother had agreed to finance the trip for the Mother and the child W as the Mother had not been in a position to finance a trip herself.
The Federal Magistrate then stated at [30] that “[t]he other principal change” was that the Mother’s grandmother, who was the primary carer of the Mother, had become “more frail” as she is 83 years of age and in deteriorating health. The Federal Magistrate noted that it may be the last and “indeed the only opportunity for [W] to spend time with her great grandmother and that is therefore a significant change in circumstances”.
The Federal Magistrate at [31] noted that it was clear that the Mother was in breach of the Turkish orders made in 2002 that related to the child B returning to Turkey once a year to spend time with her father. The Federal Magistrate said that it appeared this breach “has been acquiesced to by her former husband and has occurred with his consent”. The Federal Magistrate said that given this “consent and acquiescence” his concerns that the Mother “may breach Australian orders is reduced”.
The Federal Magistrate at [31] accepted the submission on behalf of the Mother that she has never breached Australian court orders and that she has facilitated over recent times extra contact periods for the Father in spite of his “poor behaviour” during supervised visits at contact centres. The Federal Magistrate said that after the Father was suspended from a contact centre for six weeks, the Mother “complied fastidiously” with orders made. The Federal Magistrate did note the Father “complains” that the Mother is late to those contact visits.
The Federal Magistrate at [32] concluded that the Mother “is focused on [W]’s needs to have a relationship with the father, pursuant to the objects of the Act as set out in s.60B of the Family Law Act and as required by the orders made on 9 September 2008”.
The Federal Magistrate at [33] noted that the Mother’s income is from Centrelink benefits and that she had no means to pay a bond “which could be forfeited in the event that she did not comply with the orders”. The Federal Magistrate accepted submissions from the Mother’s solicitors that the imposition of a bond “would be tantamount to a prohibition on her travel”. He said that given the Mother’s limited income and limited financial resources he accepted the submission and “as a consequence the requirement of a bond” would not be imposed.
The Federal Magistrate then at [34] referred to the circumstances of the Mother and said that he accepted that the Mother “regards Australia as her permanent home even though she has no family here apart from her children”. The Federal Magistrate also accepted that the Mother regarded Australia as offering better opportunities for the future of her children than they would experience if they were living in Turkey. The Federal Magistrate also said it was clear from the Family Reports that the child B was well settled in Australia and wants to remain living here although she does want to visit her father. The Federal Magistrate also observed that the child B is “keen to continue her education” in Australia.
The Federal Magistrate then turned to consideration of the “Relevant Legislation”. He said
35.On deciding this case orders must have as their paramount consideration, the best interests of W. In determining [W]'s best interests I have had regard to s.60CC(2), (3) and (4).
36.Section 60CC(2)(a) and (b) are both very relevant. [W] has just begun to develop a meaningful relationship with her father. A three month visit to Turkey and absence from him as sought by the mother would be too long a period and would adversely impact this relationship. A trip of a lesser duration of five to six weeks would not be too long and would not inhibit nor adversely impact [W]'s relationship with her father given that twice weekly telephone calls would be ordered. The father says the child would be exposed to family violence in Turkey from the wife's ex husband's family and from disputes between his family and the mother's family. There is no verifiable nor believable evidence that this would occur, simply assertions by the father during cross-examination. I do not accept this evidence. There is no evidence that the wife's ex husband has been other than accommodating of his former wife and [B]'s position in remaining in Australia and indeed that he has been patient and understanding about it. There is no evidence that he has in any way engaged in threatening or abusive behaviour apart from a very limited assertion made by the father. There is no evidence he has sought any further Court orders either in Turkey or Australia and he could have done both. I do not consider that there is any real risk that the mother will not return to Australia at all.
37.Section 60CC(3)(a) and (l) are not relevant having regard to the circumstances of this case and the age of the child.
38.In respect to s.60CC(3)(b) the child is developing her relationship with her father. A five to six week absence in Turkey will not adversely impact this and any effect will be ameliorated by the telephone communication order.
39.Having regard to s.60CC(3)(c) the mother has demonstrated a willingness to facilitate a close and continuing relationship between [W] and her father, when one considers the family violence that has been existent in their relationship in the past, the father's behaviour at the contact supervision centre, her compliance with the orders and the extra time that she has facilitated between the child and the father.
40.Having regard to s.60CC(3)(d) the change in circumstances that will be occasioned by the making of this order will only be temporary. The effect on being separated from her father will be ameliorated as I have said by the telephone calls that will be ordered. Whilst telephone calls have a practical difficulty and an expense given both the time differences and the cost of the overseas call these can be reduced by a calling card or a phone card. I have regard to the time differences between Turkey and Australia are approximately six hours and have sought to make orders that will facilitate [W] being available for calls.
41.The father will not be able to meet [W]'s emotional needs if [W] were required to remain in Australia so that her mother can travel to Turkey with [B]. She would likely fret being separated from her mother and sister, something she has not experienced except for recent single overnight visits.
42.Having regard to s.60CC(3)(g), a visit to Turkey will enable [W] even at her young age to experience her cultural and national heritage firsthand and learn of her extended family.
43.In respect to s.60CC(3)(i) the mother has demonstrated a good attitude to the responsibilities of parenthood as previously referred to, indicating that she will return to Australia with [W] as she states that she intends to and as she will be required to by these orders.
44.Past family violence orders and the current restraining order means that the father could not travel together with the mother, to do so would be in my view be a recipe for disaster. It would open to [W] to stress and upset from which she is currently shielded.
45.Having regard to s.60CC(3)(m) Turkey is a signatory to the Hague Convention and the civil aspects of international child abduction. The address and contact details of the central authority have been disclosed by the mother. The mother is obviously well aware of the effect of that treaty and this is another reason to conclude she will abide with these orders and return the child at the end of the holiday.
46.Having regard to s.60CC(4) she has fulfilled her responsibilities as a parent. She has complied with the existing parenting orders. She has facilitated extra time for the child with the father so as to enable him to further develop his relationship with [W] prior to her short visit to Turkey.
GENERAL PRINCIPLES
This is an appeal against a discretionary judgment and in determining such an appeal there is a strong presumption in favour of the correctness of the decision. The limits on interference by an appellant court with such a judgment are well established by the authorities. It is not enough that the appeal court considers that, if it had been in the position of the court below, it would have reached a different outcome. It must be established that there has been some error made in exercising the discretion. It may be shown that there has not been a proper exercise of judicial discretion if in making the decision the primary judge acted upon a wrong principle; was guided or affected by extraneous or irrelevant matters, was mistaken as to the facts, did not take into account some material consideration or gave inadequate weight to relevant considerations. It may not appear how the result embodied in the order was reached, but if upon the facts the result is unreasonable or plainly unjust it may be inferred that in some way there has been a failure properly to exercise the judicial discretion: House v The King (1936) 55 CLR 499 (per Dixon, Evatt and McTiernan JJ) at 504-5.
GROUNDS OF APPEAL
There is no doubt that the complaint by the Mother that the Notice of Appeal of the Father did not disclose any appellable grounds of appeal or did not adequately identify any appellable error by the Federal Magistrate had some merit. However no application was made for summary dismissal of the appeal. Further, the lawyers for the Mother approached the hearing on the basis that they sought to identify and articulate some errors that the Father may be contending for. In my view this approach was entirely appropriate given the Father was without legal representation and required the assistance of a translator. Further, for my part I was able to identify what the gravamen of the complaint by the Father was.
The Father sought to raise an issue of risk to the child W if she was taken by the Mother to Turkey. He suggested that this was two fold. First, the possibility of harm because of conflict between the maternal and paternal families. Second, the Mother may be forced to remain in Turkey because of her breach of orders relation to the child B. The Father contended that the Federal Magistrate failed or failed to adequately deal with these aspects of risk of harm to the child W.
As to the first matter it was dealt with by the Federal Magistrate. In his reasons at [36] the Federal Magistrate said that the Father contended that the child W would be exposed to family violence in Turkey from the Mother's ex husband's family and from disputes between the paternal family and the maternal family and that “[t]here is no verifiable nor believable evidence that this would occur, simply assertions by the father during cross-examination. I do not accept this evidence”. This finding was open to the Federal Magistrate on the evidence available to him.
As to the second matter of risk it was addressed by the Federal Magistrate at [31] of his reasons where he said:
31.It is clear that the wife has been in breach of the Turkish orders made in 2002 in that she has not returned [B] to Turkey each year for at least a month so as to enable that child to spend time with her father. It does however appear that that breach has been acquiesced to by her former husband and has occurred with his consent.
Then, as I have already observed, at [36] the Federal Magistrate said
... There is no evidence that the wife's ex husband has been other than accommodating of his former wife and [B]'s position in remaining in Australia and indeed that he has been patient and understanding about it. There is no evidence that he has in any way engaged in threatening or abusive behaviour apart from a very limited assertion made by the father. There is no evidence he has sought any further Court orders either in Turkey or Australia and he could have done both. I do not consider that there is any real risk that the mother will not return to Australia at all.
Again these findings were available on the evidence or lack thereof.
It was submitted that the next matter complained of by the Father was that by reason of the restrictions on his relationship with the child W in Australia, if the child was taken to Turkey there would be non-compliance by the Mother with the order for telephone contact and thus a risk to the relationship of the Father and the child.
On behalf of the Mother it was submitted that the Federal Magistrate did address issues in relation to risks to the relationship of the Father and the child W.
The Federal Magistrate said:
31.… It is submitted, and I accept, that she has never breached the Australian Family Law orders throughout the lengthy litigated dispute between her and [Mr Eyers]. She has facilitated over recent times extra visits between [W] and her father. She did not use the father's poor behaviour at the [deleted] Contact Centre as an excuse to ensure that he was denied visits to [W]. He recommenced those visits after his six weeks suspension from that centre was lifted. She has complied fastidiously with the orders since then with the exception that the father complains that she is regularly late at the commencement of the period of time that he is to spend with the child.
32.This leads me to conclude that she is focused on [W]'s needs to have a relationship with the father, pursuant to the objects of the Act as set out in s.60B of the Family Law Act and as required by the orders made on 9 September 2008.
The Federal Magistrate said at [38] that “[a] five to six week absence in Turkey will not adversely impact this and any effect will be ameliorated by the telephone communication order”, and at [39], “… the mother has demonstrated a willingness to facilitate a close and continuing relationship between [W] and her father, when one considers the family violence that has been existent in their relationship in the past, the father's behaviour at the contact supervision centre, her compliance with the orders and the extra time that she has facilitated between the child and the father”. The Federal Magistrate said at [43] that the Mother had demonstrated a “good attitude to the responsibilities of parenthood” and at [46] that the Mother had “fulfilled her responsibilities as a parent”.
The Federal Magistrate made findings that the Mother had demonstrated a willingness to facilitate a close relationship between the Father and the child W notwithstanding various incidents such as what occurred at the contact centre. As well the Mother had been providing for the Father to spend some additional time with the child, although the exact nature of this time was not clear. In cross-examination on 14 July 2009 the Father admitted that he has spent additional time with the child. In her affidavit of 2 July 2009 the Mother gave evidence that the Father currently spends time with the child each alternate weekend from 9:00 am on Saturday until 5:00 pm on the following Sunday. However, to make up for the time that the Father would not be able to spend with the child, in the event that the Mother took the child to Turkey, the Mother said she had been providing for the child to spend time with the Father each weekend rather than each alternate weekend and that she was happy for that to continue to make up for the time that he would miss with the child in the event that she were permitted to take the child to Turkey. In his reasons the Federal Magistrate observed at [20] that the parents are presently at the stage in relation to the orders of 9 September 2008 whereby the child is to spend from 11:00 am on Saturday to 5:00 pm on Sunday on each alternate weekend with the Father.
The Federal Magistrate at [36] considered that an absence of three months would be too long a period and would adversely impact the relationship between the Father and the child W. However, the Federal Magistrate said that a trip of a duration of five to six weeks would not be too long and would not inhibit nor adversely impact that relationship, given that weekly telephone calls would also be ordered. Again the Federal Magistrate said at [38] of his reasons that a five to six week absence in Turkey would not adversely impact the child developing her relationship with the Father. Then in his reasons at [40] the Federal Magistrate said that any change in circumstances that would be occasioned by making an order sought by the Mother “would only be temporary”.
In summary, the arrangement whereby the child W spends time overnight with the Father has only recently progressed in accordance with the consent orders. The Federal Magistrate was obviously concerned about the impact on the relationship of the Father and the child, if the child were absent from Australia for any period of time and ultimately he came to the view, which was open to him, that the period of four to six weeks absence would not seriously impede the progression of that relationship. As I have already observed the Mother sought to take the child for a period of three months, however this was not accepted by the Federal Magistrate and the Mother has not sought to appeal against this aspect of the order.
As to any notion of the Mother travelling to Turkey with the child B and the child W remaining in Australia in the care of the Father this was also addressed by the Federal Magistrate and he was satisfied that the Father would not be able to meet the emotional needs of the child W if she were to remain in this country. I have no doubt that this finding was also open to the Federal Magistrate particularly having regard to the evidence before him that the Mother was the primary attachment figure of the child and what had been said by the Family Consultant in the two Family Reports I have identified.
Then during the course of his reply to the oral submissions of counsel for the Mother, the Father, on at least two occasions, made a submission which suggested that he did not have any complaint that the child W may be at risk of harm if she were taken to Turkey. The Father submitted that if he could be given what he identified as a “guarantee” that the child would be returned to Australia by the Mother, including some form of guarantee from the maternal family, then the Mother could take the child to Turkey. This submission, although surprising, identified what I believe to be the gravamen of the Father’s complaint, namely his concern that the Mother may not return with the child to Australia at the end of the period of the holiday.
In my view the issue about whether the Mother would return the child to Australia was adequately dealt with by the Federal Magistrate. The Federal Magistrate accepted the reasons the Mother put forward as to why she wanted to travel to Turkey with both children.
In his reasons the Federal Magistrate at [31] dealt with any concerns that the Mother may breach Australian orders. He accepted that the Mother has never breached any orders made in Australia throughout what he described as a lengthy litigated dispute between her and the Father. The Federal Magistrate accepted that the Mother has facilitated the child W spending extra time with the Father. Further, the Mother has not used the Father’s poor performance at the contact centre “as an excuse to ensure that he was denied visits”. In fact the Federal Magistrate said at [31] that the Mother has complied “fastidiously with the orders”. The Federal Magistrate also at [33] dealt with the imposition of a bond to be forfeited in the event that the Mother did not return to Australia. The Federal Magistrate at [34] dealt with the circumstances of the Mother and accepted that she regards Australia as her permanent home even though she has no family in this country. He accepted that the Mother regards Australia as offering better opportunities for the future of the children than they would experience if they lived in Turkey. The Federal Magistrate said that it was clear from the family reports that the child B was well settled in Australia and wants to remain living here and continue her education here.
The Federal Magistrate at [45] also took into account that Turkey is a signatory to the Convention on Civil Aspects of International Child Abduction and that the Mother was obviously well aware “of the effect of that treaty”. The Federal Magistrate said that this was another reason to conclude that the Mother would abide by orders and return the child.
I also had the benefit of written submissions on behalf of the Mother. In the submissions it was contended that although not specifically raised in grounds
1 - 4 of the Notice of Appeal, it seemed by inference from the Grounds of Appeal that a number of points were raised.
It was submitted the Federal Magistrate provided the Father with procedural fairness and to fully ventilate his case. The Federal Magistrate correctly identified the issues which the Father wished to be litigated being:
·
An issue regarding Rice v Asplund given that a watch list order and restraint on the child being removed from Australia was made on
9 September 2008;
·Whether the child W should be allowed to be removed from Australia and for what period;
·Whether the mother should have the sole parental responsibility to apply for a passport for the child.
The Federal Magistrate had previously granted the Father an adjournment of the hearing originally scheduled to take place on 22 June 2009 over objection, as his lawyers had ceased to act and he wished to obtain further representation. The Father appeared on the adjourned date still unrepresented.
The Father’s Response and Affidavit had been prepared by solicitors and in the adjourned period he prepared and filed a further affidavit sworn on 6 July 2009. All his documents were read without objection being taken to their contents.
The Father was assisted by an interpreter; given the opportunity to cross-examine the Mother and specifically declined the opportunity; gave oral evidence; was given the opportunity to give evidence by way of re-examination; was given the opportunity to object to the tender of evidence and was given the opportunity to make submissions and made submissions.
As to any contention that the Federal Magistrate erred at law or manifestly misapplied the law or his application of the law was against the weight of evidence it was submitted the Federal Magistrate applied the correct law to the issues identified.
The Federal Magistrate identified Rice vAsplund and at [29] and [30] of his reasons considered the evidence and then made a finding of significant change in circumstances being the availability now of funds, which previously were not available, and the fading health of the maternal grandmother.
The Federal Magistrate identified the proceedings to be pursuant to Part VII of the Family Law Act. The Federal Magistrate applied the objects set out in s 60B and the best interests principle by specific reference to relevant sections of
s 6OCC(2), (3) and (4). The Federal Magistrate also considered s 60CA at [35] stating that "on deciding this case orders must have as their paramount consideration, the best interests of [W]."
The Federal Magistrate at [42] was satisfied that the child W would benefit from cultural and national heritage of Turkey at first hand and learn of her extended maternal family. Further at [30] that it may be the last opportunity for the child to spend time with her great grandmother
As to grounds 1 and 2 of the Grounds of Appeal it was submitted that the Father by inference asserted that the Federal Magistrate failed to identify the issue raised by the Father that he did not give permission for a passport to be issued in particular the orders he sought were that the Mother's application be dismissed. This was identified by the Federal Magistrate at [26] of his reasons.
It was submitted that in grounds 3 and 4 of the Grounds of Appeal the Father seemed to assert that the Federal Magistrate failed to address the risk issues the Father raised of the Mother not returning the child W. I have already dealt with this matter. The Federal Magistrate did address this issue.
It was submitted that by inference in ground 4 the Father seemed to assert that the Federal Magistrate failed to address an issue of risk to the safety of the child W in Turkey. I have already dealt with this matter. The Federal Magistrate did address this issue.
It was submitted that by inference in ground 4 the Father seemed to assert that the Federal Magistrate failed to address the impact on the Father and his relationship with the child W if the Mother was permitted to take the child. I have already dealt with this matter. The Federal Magistrate did address this issue.
It was submitted that by inference in ground 4 the Father seemed to assert that the Federal Magistrate failed to place any or any adequate weight to the Father’s alternate proposals. The Father’s first proposal was that the child W stay with him and the Mother and the child B travel to Turkey. The Father's second proposal was that he travel also to Turkey. The Federal Magistrate did consider the Father’s proposals and made findings regarding same.
It was submitted on behalf of the Mother that by inference in ground 5 the Father raised an issue of the child's health. I accept that this issue was not raised at the hearing of this matter on 14 July 2009.
It was submitted that the Father contended that the Federal Magistrate did not disclose a clear path by which his orders were formulated. I assume that this may be a complaint about adequacy of reasons. In any event it was submitted on behalf of the Mother, and I agree, that the Federal Magistrate in his reasons disclosed a clear path leading to the orders that were made. The judgment was considered for two hours after the close of evidence and submissions before it was delivered. The reasons set out the written evidence considered; the procedure that had been followed leading up to the hearing; the background chronology, identification of the issues; the relief sought by each parent; the evidence heard; the applicable legislation and case law; and findings in relation to the evidence.
I observe that in his submissions to me the Father made a passing reference to what counsel for the Mother described as a terrorist organisation. The matter was not elaborated on by the Father and was not raised before the Federal Magistrate.
CONCLUSION
The Federal Magistrate heard and determined the relevant applications in a manner that could not be criticised. He gave reasons which were brief but his process of reasoning is discernable. He considered and dealt with, albeit in a limited way, all of the relevant evidence. He had regard to the relevant statutory considerations and legal principles. He made findings that were open to him on the evidence and which were in accordance with the relevant law. He came to the conclusion that it was in the best interest of the child that the orders sought by the Wife should be made. In conclusion, in my view no appellable error has been established and the appeal will therefore be dismissed.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice S.R. O’Ryan
Associate:
Date: 3 August 2009
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