Garning and Director-General, Department of Communities (Child Safety Services)
[2012] FamCAFC 35
•9 March 2012
FAMILY COURT OF AUSTRALIA
| GARNING & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) | [2012] FamCAFC 35 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION – HAGUE CONVENTION – Where mother challenges trial judge’s finding that the father did not consent to the mother permanently relocating the children to Australia at any time or to their retention in Australia – Where mother asserts that the trial judge erred in rejecting the evidence of the mother and applying the law in Jones v Dunkel (1959) 101 CLR 298 – Where mother asserts the trial judge erred in failing to give assistance to the mother and denied the mother procedural fairness – Where mother’s challenge is in turn dependant upon the acceptance by this Court of further evidence – Where application to adduce further evidence stands alone as an issue to be determined – Where further evidence was not available in admissible form at the time of the Appeal – Where further evidence sought to be admitted is not in a form recognised by s 93A(2) – Where the Court was not referred to any Rule the dispensation with which could have made the evidence admissible – Where further evidence even if admissible unlikely to have demonstrated the order under appeal was erroneous – Application to admit further evidence dismissed – Appeal dismissed. |
| Evidence Act 1995 (Cth) s 21 Family Law Act 1975 (Cth) s 93A(2) Family Law (Child Abduction Convention) Regulations 1986 (Cth) Regulations 15, 16 and 29 |
| CDJ v VAJ (1998) 197 CLR 172 Director-General, Department of Human Services & Harries [2010] FamCA 1129 Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 217 FLR 366 Jones v Dunkel (1959) 101 CLR 298 ReF: Litigants in Person Guidelines (2001) 27 Fam LR 517 Sheldon & Weir [2011] FamCAFC 212 Wills v Australian Broadcasting Corporation (2009) 253 ALR 228 |
| APPELLANT: | Ms Garning |
| RESPONDENT: | Director-General, Department of Communities (Child Safety Services) |
| FILE NUMBER: | BRC | 1387 | of | 2011 |
| APPEAL NUMBER: | NA | 59 | of | 2011 |
| DATE DELIVERED: | 9 March 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ and Coleman J |
| HEARING DATE: | 5 September 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 June 2011 |
| LOWER COURT MNC: | [2011] FamCA 485 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Feeny Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Green |
| SOLICITOR FOR THE RESPONDENT: | Crown Law |
Orders
The Application in an Appeal to admit further evidence filed by the Appellant on 22 August 2011 be dismissed.
The Application in an Appeal to admit further evidence filed by the Central Authority on 1 September 2011 be dismissed.
The appeal be dismissed.
Within 21 days the Respondent file and serve written submissions in the event they wish to seek costs against the Appellant.
Within 21 days thereafter the Appellant file and serve written submissions in response to those filed on behalf of the Respondent in relation to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Garning v Director-General, Department of Communities (Child Safety Services) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 59 of 2011
File Number: BRC1387 of 2011
| Ms Garning |
Appellant
And
| Director-General, Department of Communities (Child Safety Services) |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 5 August 2011, Ms Garning (“the mother”) appeals an order made by Forrest J on 23 June 2011, that four children aged between 15 years and 8 years be returned to Italy in the company of the mother should she determine to return to Italy with the children and, upon receipt by her, if she chose to return with them, of the sum of AUD$8,000, to be provided by the father for the financial support of the mother and the children.
The order was made on the application of the Department of Communities (Child Safety Services) as the State Central Authority (“the Central Authority”) under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The Regulations give effect to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
At trial the mother who was unrepresented argued the following:
·The children’s removal to or retention in Australia was not in breach of the father’s rights of custody;
·At the time of the children’s retention the father was not actually exercising rights of custody;
·The father had consented to the children coming from Italy to Australia to live permanently in Australia;
·The father acquiesced or consented to their retention in Australia.
If the Court found that there was nevertheless a wrongful removal then the mother relied upon the following defences under Regulation 16(3):
·That there is a grave risk that the return of the children to Italy would expose them to physical or psychological harm or otherwise place them in an intolerable situation (Regulation 16(3)(b));
·The children object to being returned, show a strength of feeling beyond the mere expression of a preference of ordinary wishes and have obtained an age and degree of maturity at which it is appropriate to take account of their views (Regulation 16(3)(c)).
The mother purported to rely upon Regulation 16(2)(c) that the children are settled in their new environment but his Honour pointed out that this defence was misconceived in that it applied only where an application was made more than one year after removal, which did not apply in this case.
This appeal challenges only one of the various arguments raised by the mother before his Honour and challenges the finding that the father did not consent to the mother permanently relocating the children to Australia at any time or to their retention in Australia as at 20 July 2010.
A significant part of the challenge to his Honour’s finding is dependant upon the acceptance by this Court of further evidence. The mother submits that if the Court receives further evidence then the matter would need to be remitted to Forrest J for determination of this issue. The Central Authority submits that if the Court admits further evidence from the mother then it must also admit further evidence on behalf of the Respondent going to this issue and that the Court will then be in as good a position as the trial judge to determine the issue without remitting the matter.
Background
His Honour included the following “Brief background facts” in his Reasons for Judgment:
5.The respondent is [Ms Garning]. She was born in this country in 1979 but went to study Italian language, art and culture in [City 1], Italy, at the youthful age of 16. During that stay she fell in love with [Mr V] when she was living as a guest of his family in the vicinity of a small village on the outskirts of the [City 1]. [Ms Garning], at the relatively young age of 17, married [Mr V], then taking up permanent residence in Italy and mastering the Italian language.
6.[Ms Garning] and [Mr V] had five daughters, the third of which, sadly, died as an infant due to birth abnormalities. The surviving four girls are now 14, 12, 9 and 8 years old respectively.
7.For much of their married life the couple lived in a separate half of [Mr V’s] family villa. The other half of that villa was the residence of [Mr V’s] parents.
8.The evidence appears to establish that after the death of their third child, [Mr V] experienced some mental health problems, becoming depressed. That contributed to deterioration in the couple’s relationship that ultimately led to a separation in or around January 2007.
9.At that time, a serious incident of domestic violence perpetrated by [Mr V] against [Ms Garning] precipitated the separation. [Ms Garning] left the family villa and took up residence in an apartment in the village. The four girls went with her, no doubt a reflection of the principal care that she had provided them with to that point in time.
10.On the 27th of November 2008, the couple obtained what translates into English as a “consensual separation agreement” with the sanction or approval of a Judge of the law courts of [City 1].
11.By that separation agreement, the couple agreed to have joint custody of the four girls and that the girls were to reside mostly with their mother with visitation rights to their father on one afternoon per week after school until after dinner and from after school each Friday until Monday morning.
12.Soon thereafter, [Ms Garning] decided that she would prefer to return with the girls, to live in Australia. She was, thereafter, in regular contact with Australian Consular staff based in the Australian Embassy in Rome seeking their assistance to obtain Australian citizenship for the four girls, passports for the four girls and, ultimately, travel to Australia for permanent relocation.
13.In 2010 [Ms Garning] was able to secure [Mr V’s] consent to the issue of passports for the four girls and on the 23rd of June 2010 [Ms Garning] and her daughters travelled from Rome Airport to Brisbane. They have been in Australia ever since. Their father, however, remains in Italy and through the use of the provisions of the Hague Convention now seeks their return.
Forrest J’s Reasons for Judgment
First Forrest J noted the application for a return order under Regulation 15 and that if the Court was satisfied an application for a return order was made and had been filed within one year after the children’s removal or retention and the Central Authority satisfied the Court that the children’s removal or retention was wrongful under sub-regulation (1A) of Regulation 16, then the Court must make an order to return the children. His Honour observed that mandatory return is made subject to the conferral of discretion not to order the return of the children if the person opposing the return of the children establishes one or more of the matters prescribed in sub-regulation (3) of Regulation 16. His Honour then indicated from the material put before him by the mother, he was able to discern various contentions by her in relation to matters upon which he must be satisfied before making a return order. They were:
·That at the time she brought the four children to Australia the father was not actually exercising rights of custody.
·That the removal of the children to Australia or their retention in Australia was not in breach of the father’s rights of custody because he agreed to let them come.
·That, in any event, after the children came to Australia the father has acquiesced in their being retained here.
·That there is a grave risk that the return of the children to Italy would expose them to physical or psychological harm or otherwise place them in an intolerable situation.
·The children object to being returned.
(Reasons for Judgment, paragraph 25)
As only one of those arguments is relevant to the appeal, namely consent to the removal of the children, we need only briefly mention his Honour’s disposition of the other matters.
Suffice to say his Honour found that the father was a joint custodian of the children pursuant to the consensual agreement sanctioned by a City 1 Court, that he was actually exercising those rights of custody albeit jointly with the mother or, at least, would have exercised those rights of custody at the time the children were retained in Australia contrary to his wishes on 20 July 2010.
His Honour further determined that the father was actually exercising rights of custody as at 20 July 2010 and that the retention by the mother of the children in Australia at that date was in breach of his rights of custody.
His Honour considered the allegation about the father’s alleged consent to the mother bringing the children to Australia on a permanent basis prior to their removal and rejected it. As this forms the basis for the appeal we will deal with it in more detail later in these reasons.
His Honour then considered whether the father had acquiesced or consented to the children’s retention in Australia and rejected that argument on the evidence before him.
He then turned to Regulation 16(3) and found that the mother had not made out the defence of grave risk provided for in Regulation 16(3)(b).
In respect of the argument that the children objected to being returned, his Honour had before him in particular a report from a family consultant Ms E, who had interviewed the children, and a report commissioned by the mother. His Honour found, relying on those reports, that any objection to being returned did not show a strength of feeling beyond the mere expression of a preference or ordinary wishes and did not give rise to the defence.
His Honour pointed out that the mother’s argument about the children being settled in their new environment was misconceived as the application was made within twelve months of the alleged wrongful removal and, finally, his Honour indicated that if he was wrong in his determination that the mother had not made out any of the defences he would nevertheless, in the exercise of the residual discretion that would arise, still order a return of the four children to Italy.
As it forms the basis of the appeal we now turn in more detail to his Honour’s treatment of the mother’s assertion that the father consented to the removal of the children on a permanent basis to Australia. It is convenient that we set out his Honour’s findings on this matter (Reasons for Judgment, paragraphs 37-42):
37.The mother gave evidence that the father consented to her bringing the children to Australia on a permanent basis prior to their removal. She asserts, clearly, to the extent that he now asserts in evidence that he did not, that he is not telling the truth about that and that he has merely changed his mind after the event.
38.The father’s evidence is that the mother told him on the telephone one day in early 2009 that she wanted to go back to Australia, taking the four girls with her, with the intention of allowing the father to see his daughters for a month each year. He says that he told her that if she wanted to leave and return to Australia she was free to do that but that his daughters would have to remain in Italy with her being free to visit them whenever she wanted. His evidence is that the mother persisted with her request for some time but assured him thereafter that she would never ask him again. The father says that some time thereafter, around the end of 2009, the mother again began to talk about returning to Australia to live. His evidence is that she even began to ask him to go there and live there with her. He denies that he expressed any interest in doing so or intention to do so. His evidence is that the mother then proposed to him that they both travel with the girls to Australia in June 2010 for a visit. The father’s evidence is that he told her that he believed that once she was in Australia with the girls she would not return them to Italy and so he refused to sign documents permitting that to happen. He says that the mother assured him that she had absolutely no intention of remaining in Australia, that she knew that the lives of the girls were based in Italy and that she only wanted to take them for a holiday to Australia for about four weeks. The father says that he continued to refuse to give such permission and then the mother arranged for him to meet with her lawyer to discuss the subject. The father’s evidence is that they met with the lawyer and that on this occasion the mother made it clear that she intended to only spend one month in Australia with the girls. The father contends that it was asserted to him that the Court would give the mother permission to take the children to Australia for a holiday and that, therefore, he should consent. He says, consequently, he relented and agreed to sign the passport applications for the four girls. He says that a few days later he met up with the mother in a café and [sic] their village in the presence of “a very dear friend” of the mother’s who witnessed his signature on the four passport applications. He said he did all this on the expectation that the children would be returned to him after the month in Australia to spend the Summer holiday month of August with him before school resumed again in Italy in September.
39.The father’s evidence goes on further to say that he asked his employer for leave so that he could travel with the mother and girls to Australia for the holiday but that he was unable to obtain that leave and so was unable to make the trip. The father says that he was aware that the mother had bought return tickets for herself and the four girls, that they would be leaving Italy for Australia on the 23rd of June 2010 and leaving Australia to return to Italy on the 20th of July 2010.
40.The father’s evidence is that in the first week or so of the girls’ visit to Australia he was able to communicate with them readily by telephone but that after a short while his ability to communicate with them as such became impeded. He said that their phones were turned off, the mother’s mobile phone was out of reach and that the mother never called him. He says that when he did call to speak to the children that he was told they were not available to speak to him because they were either sleeping or out playing. His evidence is that on or about the 18th of July he received a call from the mother who told him to prepare himself for bad news and that she and the girls were not going to be returning to Italy. He says that he told the mother in that call that she could do what she liked but that the girls must be home in Italy come the 20th of July. After the 20th of July he says that he confirmed that the return ticket reservations with the airlines had been cancelled and that the children were not returned to Italy. His evidence is that he then began the process that has culminated in the application before the Court.
41.As counsel for the central authority submitted in his written submissions, there is some common ground between the mother and the father in respect of these matters. The mother agrees that when she initially broached the subject of returning to Australia and taking the girls with her, that the father simply refused permission for the girls to be relocated. The mother also agrees that she raised with the father the prospect of the entire family, the father included, relocating to live in Australia. The mother’s evidence is that the father did, from time to time, agree to move with the family to Australia and on one occasion he even spent some time at her apartment on the internet looking to see what sort of work he might be able to obtain in Australia. The mother’s evidence is that, ultimately, the father agreed to the mother taking the children to Australia to live and signed the passport applications for the children in the presence of her friend. The mother’s evidence is that when signing the passport applications in the presence of her friend who witnessed the signatures on the applications, the father readily made it clear that his agreement was to the children being relocated permanently to Australia.
42.The mother’s evidence is that once she obtained that permission she set about obtaining the passports for the four girls as quickly as possible and putting in place the travel ticketing arrangements to leave for Australia as soon as possible. The mother concedes that return air tickets were purchased for her and the four girls and paid for by members of her extended family in Australia. Her evidence is that the return airfares were purchased after research revealed that such fares were cheaper than the fares for one way tickets. The mother’s evidence is, effectively, that the father then simply changed his mind and determined that he wanted her to return to Italy with the children some weeks after they had arrived in Australia.
Having set out the mother’s evidence his Honour observed that there were critical matters of disputed fact the determination of which could turn the outcome of the application. His Honour observed that there had been no cross examination but that nevertheless the provisions of the Regulations and the availability of “defences” give rise to the necessity in some cases to make critical findings of fact in respect of evidence that is contradictory. Having cited relevant authorities about which there is no dispute his Honour said (Reasons for Judgment, paragraph 48):
48.I respectfully agree with all of those observations. In this case, I must simply look to all the evidence that is before me, including the sworn affidavit evidence of both the mother and the father as well as all of the other evidence that both parties have deigned to file and rely upon.
His Honour then turned to an analysis of the evidence of the mother, noting that in relation to this defence it was incumbent upon the mother to satisfy the Court of the father’s consent; in other words she bore the evidentiary onus of proving the defence. His Honour then dealt with the specific material relevant to this issue (Reasons for Judgment, paragraphs 49-62):
49.The mother put into evidence many pages of documents that she had obtained by way of freedom of information request from the Australian Government’s Department of Foreign Affairs and Trade (DFAT). She attached those to an affidavit that was filed by her on the 13th of May 2011. Those documents are documents from the Department’s file in respect of its dealings with the mother and others in respect of the mother over a number of years between the separation of the mother and the father and the mother’s return to Australia with the children. Material in those documents clearly reveals that the mother was seeking the assistance of the Australian Embassy in Rome over several years. The thrust of the assistance the mother was seeking was clearly directed at ultimate return to Australia and relocation of the four children by the mother on a permanent basis to Australia. Assistance was sought in the process of having the four girls’ Australian Citizenship confirmed, having passports issued for them and in organising their return. The documents reveal that the mother made her intentions of permanent relocation to Australia clear to Australian Embassy staff. The mother asserted in her evidence that she had the assistance of Australian Government officials in relocating the children to Australia and, as I understand her submissions, she asserts that the Court should take from that the implication that the Australian Government has somehow sanctioned her actions even if she has somehow “wronged” the father.
50.I have read through the hundreds of pages of the DFAT documents put into evidence by the mother and have found nothing that supports a finding that any Australian Government official somehow knowingly assisted the mother to do something that was wrong. On the contrary, the documents support a finding that Australian Government officials repeatedly made it clear to the mother that a permanent return to Australia which involved relocation of the four girls to Australia would only be able to be achieved with the informed consent of the father. The documents also record that the mother assured the same Australian Government officials when she obtained the father’s signature on the girls’ four passport applications that she had gained the relevant consent. Indeed, not even the assistance of Embassy officials in helping the mother and girls to change their flights out of Rome Airport, from those that the father had been informed about to a different flight, is evidence that Australian Government officials were somehow involved in a conspiracy with the mother to do the wrong thing by the father. The material in those documents highlights Embassy officials’ concerns for the wellbeing of the mother and her daughters, gained over dealings with the mother throughout the years, based on the mother’s reports of the father’s behaviour towards them.
51.I do not find on the evidence contained in those documents that any Australian Embassy officials who helped the mother did so knowing that the mother did not have the father’s consent to remove the girls permanently from Italy.
52.In fact, the documents put into evidence by the mother support a finding that the mother grew more and more desperate to remove herself and her four children permanently from Italy through 2009 and the first half of 2010. When a person becomes desperate, whether with objective justification or not, they can sometimes consider that the desired end result justifies all means, however desperate.
53.In her affidavit evidence the mother asserted that a very good friend of hers was present when the father signed the passport applications for the four girls, witnessed the father’s signature on those applications and clearly heard and understood the father’s actual consent to the mother relocating their four daughters permanently to Australia. The father’s evidence, as already observed, corroborates the mother’s assertion that that particular friend was present when the passport applications were signed.
54.As a matter of note, upon which I place some weight in this process of determining where the truth lies on this disputed factual issue, I point out that in the mother’s affidavit evidence she asserted that her dear friend who had witnessed the father’s asserted consent would be providing an affidavit of evidence to that effect corroborating the mother’s version. No such affidavit was filed by the mother and no explanation was given by the mother for that.
55.I am immediately mindful of ‘the rule in Jones and Dunkel’ as in Australia the principles arising out of the High Court decision of Jones v Dunkel (1959) 101 CLR 298 are commonly termed. According to Cross on Evidence, Butterworth, 1996, volume 1, paragraph 12.15, those principles can be summarised as follows:
…[T]hat unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.
56.I consider, in circumstances where the mother asserts that the particular person is her very dear friend and that she would be providing an affidavit in which she deposed to matters very relevant to this critical factual dispute and there is an unexplained failure to put such an affidavit before the Court, that the rule in Jones and Dunkel has some application in this case.
57.Additionally, although the mother said in her evidence that members of her extended family paid for the airfares for her and the girls to return to Australia and that it was they who purchased the return tickets because they were cheaper than one-way fares, no affidavit evidence of such persons deposing to matters corroborating the mother’s evidence in that regard was filed by the mother. Again, the unexplained absence of such evidence brings into focus the rule in Jones and Dunkel in this regard as well.
58.Further, the Court had before it a report of the Court’s family consultant, [Ms E], who interviewed the four girls pursuant to an order made by me on an interlocutory basis. That was attached to an affidavit filed 13 May 2011. In paragraph 11 of her report, [Ms E] says this:
[Mr V’s] position is that he consented to the children travelling to Australia with [Ms Garning] for a holiday only. The children’s statements appear to support [Mr V’s] understanding.
59.[Ms E] does not elaborate, or give any actual specifics of statements made by the children upon which she bases that opinion evidence, but I consider it safe to infer that the children said something to her to support her view that when they came to Australia they, too, thought they were only coming for a holiday.
60.In any event, when I put [Ms E’s] opinion evidence to the mother during the course of her submission for her considered response, the mother clearly confirmed that her four daughters had only been told by her that they were coming to Australia for a holiday before they came. The mother indicated to the Court that she had not told them that she was bringing the children permanently to Australia because she was concerned to avoid them raising the matter with their father in such a way that might cause him to change his mind once the mother had gained his consent for the permanent relocation.
61.Another telling piece of evidence put before the Court by the central authority was an article downloaded from [a Queensland] newspaper linked website bearing the date 22 July 2010 which was attached to an affidavit of [Ms F] filed on 10th of May 2011. Although it is not absolutely clear to me, I infer this article appeared at that time in that daily newspaper circulating in the area where the mother and children relocated to. The article is titled “Family Flees to Safety of Coast”. It reveals the story of the mother and the children and, relevantly to the point under immediate consideration, says this:
What followed was a delicate mission as [Ms Garning] planned a secret escape from Italy with her girls. It took three years and the help of the Australian Embassy in Rome to get the family out. “After we divorced I knew I wanted to come back to Australia but it was so hard to escape [Mr V]”, [Ms Garning] said. “He would not sign the girls’ passports and I had to coax him over time. I convinced him to let me take the girls to Australia for holiday and as soon as we got to Rome the Embassy looked after us and made sure we got out”.
62.When I put that evidence to the mother for her considered response during her submissions she told me that I should not rely on the quote as evidence of the truth of what it contained as it was taken out of context and she was misquoted. She gave no further explanation.
Having considered this material his Honour noted that his determination of this disputed factual issue was not based on absolute acceptance of the truthfulness of all of the evidence deposed to by the father. His Honour noted that in one respect at least the father had not been truthful in his evidence but that upon weighing up all of the evidence he was satisfied that the father did not consent to the mother permanently relocating the four girls to Australia at any time or to their retention in Australia as at 20 July 2010. His Honour found that the mother merely had the father’s consent to bring the children to Australia for a holiday and that he had the expectation, “engendered by the actions and words of the mother, that they would be returned to Italy at the conclusion of the holiday on or about the 20th July 2010”. His Honour specifically rejected the mother’s evidence to the contrary.
The Appeal
The Appellant does not argue that the trial judge erred in finding that the mother had not discharged the onus upon her from the evidence before him. The argument advanced is that his Honour wrongly rejected evidence from a witness that was available, and that if we now admitted the further evidence in the form of an affidavit from the person referred to, the evidence would demonstrate the order under appeal is erroneous and require a re-hearing on the issue of the father’s consent to removal.
It is convenient to set out the ground of appeal in full:
1.That in determining to apply the rule in Jones v Dunkel (1959) 101 CLR 298 to reject the evidence of the mother that a good friend of hers witnessed the father’s consent to the relocation of the four children to Australia the trial judge erred in that he:
(a)failed to request and receive any or any adequate explanation from the mother as to the absence of any affidavit from the person referred to by the mother;
(b)failed to receive any document from the mother that might provide some evidence of the existence of such evidence;
(c)failed to provide to the mother some opportunity to obtain such evidence in affidavit form;
(d)failed to apply the principles applicable to persons appearing in person;
NOTE. The mother will apply at the hearing of this appeal to adduce fresh evidence in the form of an affidavit from the person referred to which evidence was not reasonably available to her at the trial of this application by reason of advice she had received from the Central Authority and the absence of any guidance to her by the trial judge as to procedural matters.
In support of her application the mother filed an affidavit in which she said that she had a document from Ms A dated 5 April 2011 indicating that she had been present when the father gave consent to the issuing of passports for the children to leave Italy. The mother contends that the material in the document would support her contention that the father’s consent was to the permanent relocation of the children to Australia.
The ground itself, independently of the application to admit further evidence, is inextricably bound to it as the submissions of the Appellant contend that if the trial judge had identified that cogent (and we would add admissible) evidence as available and assisted her in the admission of that evidence, the Court would then have had before it evidence to support the contention that consent had been given. Given the interrelationship between the asserted error in “rejecting” the evidence of the mother and the further evidence sought to be admitted, we will deal first with the assertion that his Honour erred in “rejecting” the evidence of the mother and applying the law in Jones v Dunkel (1959) 101 CLR 298. We accept nevertheless that the application to adduce further evidence also stands alone even if the ground of appeal is unsuccessful.
Discussion
The gravamen of the mother’s case is that there was procedural unfairness occasioned to her by not enabling her to put before the Court the “evidence” of Ms A (“the witness”). We characterise the complaint in this way because there was no affidavit in admissible form sworn by the witness at the time of hearing and, although her “evidence” is sought to be admitted as further evidence, we were advised by counsel that even if we were to allow the further evidence, no affidavit is available and, it was questionable whether the “evidence” is even now in admissible form. We will deal with this aspect of the appeal later when we deal with the question of admission of further evidence.
The failure to accord procedural fairness was broken down into the following complaints which we have summarised as follows:
·The trial judge was aware of the existence of evidence from a witness potentially crucial to the issue of whether the father gave consent to removal of the children (Appellant’s submissions, paragraph 6(c));
·The trial judge did not provide guidance to the Appellant (as he should have as required by Re F: Litigants in Person Guidelines [2001] FamCA 348) as to how she might seek dispensation from the rules for admission of the “evidence” of the witness other than in the form of an affidavit (Appellant’s submissions, paragraphs 10, 18 and 19);
·The trial judge did not explain to the Appellant the inferences that may be drawn as a result of the failure to produce an affidavit in acceptable form corroborating a material aspect of her case. Had he done so she might have sought relief from the rules and the trial judge might have taken the document into account (Appellant’s submissions, paragraphs 11 and 17);
·The trial judge admitted unsworn evidence from the father under Regulation 29 of the Regulations and given that Regulation 29 only applies to the Applicant the trial judge should have exercised an inherent power to admit the written evidence to do justice between the parties (Appellant’s submissions, paragraph 6(b) expanded in oral submissions).
That the trial judge was aware of the existence of evidence from the witness potentially crucial to the issue of whether the father gave consent to the removal of the children was not in doubt. Before turning to the matters argued in the appeal as described, we briefly return to the grounds of appeal as drafted:
1.That in determining to apply the rule in Jones v Dunkel (1959) 101 CLR 298 to reject the evidence of the mother that a good friend of hers witnessed the father’s consent to the relocation of the four children to Australia the trial judge erred in that he:
(a)failed to request and receive any or any adequate explanation from the mother as to the absence of any affidavit from the person referred to by the mother;
(b)failed to receive any document from the mother that might provide some evidence of the existence of such evidence;
(c)failed to provide to the mother some opportunity to obtain such evidence in affidavit form;
(d)failed to apply the principles applicable to persons appearing in person.
We observe that this is not the correct characterisation of what the trial judge did. Having determined that the mother carried the onus of establishing that the father consented to the permanent relocation of the children to Australia, his Honour then considered all of the evidence relevant to question of consent.
The evidence included the evidence of the father, relevant matters in the Australian Government’s Department of Foreign Affairs and Trade (“DFAT”) file and the mother’s evidence. At paragraph 48 his Honour said:
48.… In this case, I must simply look to all the evidence that is before me, including the sworn affidavit evidence of both the mother and the father as well as all of the other evidence that both parties have deigned to file and rely upon.
His Honour then considered the “many pages of documents” that the mother had obtained by way of freedom of information request from the DFAT. Those documents were attached to an affidavit that the mother had filed and dealt with DFAT’s dealings with the mother and others in respect of the mother over a number of years between the separation of the mother and the father and the mother’s return to Australia with the children. The mother sought to rely upon these documents in part to establish corroboration of her contention that in signing the passports the father consented to the children returning to Australia permanently rather than for a holiday as he had asserted. At paragraphs 53 and 56 his Honour said:
53.In her affidavit evidence the mother asserted that a very good friend of hers was present when the father signed the passport applications for the four girls, witnessed the father’s signature on those applications and clearly heard and understood the father’s actual consent to the mother relocating their four daughters permanently to Australia. The father’s evidence, as already observed, corroborates the mother’s assertion that that particular friend was present when the passport applications were signed. (Our emphasis)
54.As a matter of note, upon which I place some weight in this process of determining where the truth lies on this disputed factual issue, I point out that in the mother’s affidavit evidence she asserted that her dear friend who had witnessed the father’s asserted consent would be providing an affidavit of evidence to that effect corroborating the mother’s version. No such affidavit was filed by the mother and no explanation was given by the mother for that.
55.I am immediately mindful of ‘the rule in Jones and Dunkel’ as in Australia the principles arising out of the High Court decision of Jones v Dunkel (1959) 101 CLR 298 are commonly termed. According to Cross on Evidence, Butterworth, 1996, volume 1, paragraph 12.15, those principles can be summarised as follows:
…[T]hat unexplained failure by a party to give evidence, to call witnesses or to tender documents or other evidence or produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party’s case.
56.I consider, in circumstances where the mother asserts that the particular person is her very dear friend and that she would be providing an affidavit in which she deposed to matters very relevant to this critical factual dispute and there is an unexplained failure to put such an affidavit before the Court, that the rule in Jones and Dunkel has some application in this case.
His Honour then went on to consider other evidence including that the children had said to Ms E the Family Consultant and what the mother had allegedly told the Queensland daily newspaper upon her return to Australia, his Honour concluded in paragraph 65:
65.Nevertheless, weighing up all of the evidence, and particularly that which I have referred to, I am satisfied that the father did not consent to the mother permanently relocating the four girls to Australia at any time, or to their retention in Australia at the 20th of July 2010. I accept that the mother merely had the father’s consent to bring the children to Australia for a holiday and that he had the expectation, engendered by the actions and words of the mother, that they would be returned to Italy at the conclusion of the holiday on or about the 20th of July 2010. I do not accept the mother’s evidence to the contrary.
It is apparent from his Honour’s findings that he did not, as asserted in the grounds of appeal, “reject the evidence of the mother that a good friend of hers witnessed the father’s consent to the relocation of the four children to Australia”. His Honour’s comments at paragraph 56 make it clear that he was applying the rule in Jones v Dunkel (supra) properly and merely inferring that the evidence if called would not have assisted the mother, as he did when considering the mother’s evidence that members of her extended family paid for the return airfares for her and the girls to return to Australia because they were cheaper than one way fares, but producing no evidence from those family members referred to.
It is clear from a reading of the whole of the Reasons for Judgment that the application of the rule in Jones v Dunkel (supra) was not the decisive factor in his Honour’s finding regarding the father’s consent. It is abundantly clear that his Honour after weighing up all of the evidence was satisfied the mother had not discharged the onus upon her to satisfy him as to the father’s consent.
Before we turn to the bases on which it is alleged the trial judge erred in applying the rules in Jones v Dunkel (supra), it is necessary to set out how the potential evidence from the witness came to the notice of his Honour.
The affidavit of the mother filed on 7 April 2011 described the arrangement of meeting with the father in a public area to sign the passport applications for the children which he had agreed to sign. The witness was said to have been present. The mother contended that it was clear during the discussion that occurred that she and the children would not be returning to Italy. She said:
… We spoke of us coming to live here as a family, the perks, on possibility of employment, housing etc. I didn’t really believe he would come and didn’t really want my husband to come to Australia, though he had spoken of it often but I knew that if he changed his mind about coming himself and that I could get myself and my daughters here I’d be able to get some work, some financial assistance from Centrelink and more importantly the support of my mother and my family, which I needed desperately and which I felt would be happier, safer, more stable and supported environment for my daughters. I thought that if [Mr V] did come I may still find myself in exactly the same situation with him refusing to support us financially or in any other way but I also believed that whether he came or not I would be able to financially support my daughters alone if necessary, just as I have been since we arrived. However, when we finally met at the café he signed the passport applications with enthusiasm, knowing and understanding very clearly that we would not be returning to Italy unless perhaps for a brief holiday. His understanding that we would not be returning was made even clearer when, after the meeting, [Mr V], still talking about coming to Australia to start over wanted to follow me and the witness to my house, (continuing his enthusiasm) so he could look at houses and possible employment options with me there to translate for him.
I consented to his coming to my apartment only because I wasn’t alone. I was worried about his having ulterior motives, his erratic moods and mood swings, his constantly changing his mind and really didn’t know if he would stay true to his word about us all coming to Australia. He stayed at my apartment for about 30mins and researched the internet then left saying it all sounded exciting. The witness to his signing the passport applications also stayed all this time and can attest to all that I’ve said. [Mr V] said he may miss his family if he moved away from them but even asked me to ‘suss’ out the situation on work and housing for him once I arrived in Australia. He left my house enthusiastic.
After he left [Ms A] said he had turned to her as he was leaving and with a smug attitude said, “I’m not an idiot you know, I always knew they weren’t coming back.” We thought he must have felt she disapproved somehow that I had discussed my plans about moving to Australia with him. [Ms A] will swear an affidavit to the fact that she was a witness to the café meeting & his signing of the documents as well as his actions at my house and the comment he made to her as he was leaving.
Fairly early after the proceedings had commenced before his Honour and when counsel for the Central Authority was addressing him, the following exchange took place (Transcript 16 April 2011, page 45, lines 24-47 and page 46, lines 1-9):
HIS HONOUR: The mother also said somewhere in her material that when she got the signature of the husband - the ex-husband on the passport applications it was then that he knew he was signing for her to leave permanently with the girls. His signature was witness [sic] by another person.
MR GREEN:Yes, your Honour.
HIS HONOUR: And the mother said that that other person would swear an affidavit to that same effect.
MR GREEN: Yes, your Honour, with respect.
HIS HONOUR: And we haven’t seen an affidavit from any such other person.
MR GREEN:No, your Honour. And can I indicate, your Honour, as your Honour has raised that ‑ ‑ ‑
HIS HONOUR: Well, I raise it. Do you make a submission in respect of that, that I should make anything of that?
MR GREEN: Your Honour, we haven’t heard any explanation at this point. These are matters about which - I was going to wait to hear, but since your Honour has prompted the question - with respect, your Honour, actually I would rather hear what - if your Honour were to put that to [Ms Garning].
HIS HONOUR: Okay.
MR GREEN: I would rather wait to make a submission about that when I hear what [Ms Garning] explains. But other than to record that your Honour granted an extension to [Ms Garning] to file further material and I understand, although I wasn’t in court on the day, made clear that the extended date was D day for the filing of material. And notwithstanding that the Central Authority was served with material as late as last Friday and it did not include an affidavit from, I think, what’s called the guarantor or, effectively, the person who witnessed the father’s signature. …
His Honour raised this issue with the mother in the following passages (Transcript 16 April 2011, page 77, lines 10-39):
HIS HONOUR: See, the problem for you is that you don’t have any other evidence that he actually consented to them coming permanently, save for you saying that he did.
MS GARNING: Yes, it is my word.
HIS HONOUR: There’s not one piece of other evidence, save for you saying, “He consented to me coming permanently.”
MS GARNING: It is my word against his.
HIS HONOUR: But the extraneous evidence gives greater support to his view of that – to his evidence of that, being that he only consented to them going on a holiday. And you’ve some of the things that Mr Green has pointed to; the extraneous evidence that I’m taking about is, for example, return tickets being booked. Right? And I understand what you say about that but nevertheless return tickets being booked suggests exactly what that means. Return tickets, you know – there was an expectation of return. But also [Ms E] saying the girls confirmed that it was their understanding that they were only coming for a holiday, the newspaper article. So there’s a – there is some evidence – I won’t say a mass of evidence – I couldn’t possibly describe it as that – but there is other evidence of different sorts, which I call extraneous evidence – that is, other than just you saying, “He agreed to me bringing them permanently,” and him saying, “No, I didn’t. I only agreed to them going on a holiday.” There is other evidence that supports his version of that.
MS GARNING: Okay, I can address ‑ ‑ ‑
HIS HONOUR: So – and you – and finally, just before I let you speak, you say in your material you were going to get an affidavit from the witness who would also say, “Yes, when he signed that he was agreeing to permanent removal.” All right. …
The mother made submissions about other matters and returned to his Honour’s question about the witness at (Transcript 16 April 2011, page 78, lines 25-44):
MS GARNING: … The situation was very difficult for them. The reason I haven’t received an affidavit from the witness who did witness [Mr V] signing the passport applications is because I did contact her.
She has written something down. I did not know whether that, not being sworn as an affidavit, whether it would be accepted in court or not. It is true that I have received random legal advice through this whole situation but it’s also true that it has never always been followed by one lawyer so as to keep the flow of things regular and the situation under control and have things presented the way they should be, especially considering the delicate nature of this hearing in this matter. So that’s the reason I have not presented what she has written. I didn’t know if I was allowed to, it not being sworn in affidavit form. I do remember, I think I was speaking to [Ms F] outside the last hearing which was the – the listing 13 April and I was told that affidavits have to be presented in an affidavit form that’s accepted in Australia, that’s why I didn’t pursue that.
HIS HONOUR: You remember I told you that too because you annexed the two phycologists (sic) reports to your affidavit and it was pointed out that there would be objection and you needed to get them – and I told you that day that you needed to have the attached affidavits.
His Honour then gave the mother another opportunity to deal with evidence by indicating to her (Transcript 16 April 2011, page 91, lines 29-45):
HIS HONOUR: As I say, the weight of the evidence is against you on this issue of - you know, that he consented to you bringing the children permanently and that that ‑ ‑ ‑
MS GARNING: I realise that issue is very iffy and it’s not explained properly anywhere because that’s the way ‑ ‑ ‑
HIS HONOUR: Well, look, if I can use the legal expression, the weight of the evidence is against you. I pointed out those other pieces of evidence that are against you on that. And really the evidence that I’ve got that he did is you saying that he did.
MS GARNING: I realise it’s my word against him - against his ‑ ‑ ‑
HIS HONOUR: Well, it’s not just your word against him. The weight of the evidence, the other evidence, is against you. It’s your word against other evidence, not just his. And that’s the difficulty for you.
Despite this discussion between his Honour and the mother, the mother did not raise the question of the witness nor seek to provide any explanation about why an affidavit had not been sworn.
Thus, we cannot find any basis upon which his Honour failed to request or receive any adequate explanation from the mother as to the absence of any affidavit as submitted by her. It is clear that the mother informed his Honour that she did not have an affidavit but at no stage did she offer any explanation as to the reason for lack of an affidavit, merely that the witness had written something down but that it was not in the form of an affidavit. Contrary to the submissions of the mother, in our view, his Honour did give the mother an opportunity to explain why there was an absence of an affidavit and no explanation was forthcoming.
Paragraphs 1(b) and (c) of the Notice of Appeal assert that his Honour failed to apply the principles applicable to persons appearing in person and thus denied procedural fairness to the mother by failing to receive any document that might provide some evidence of the existence of the corroboration from the witness that she asserted and failed to provide her the opportunity to obtain such evidence in affidavit form.
First we note that paragraph 10 of the mother’s written submissions say:
10.This appeal is not based upon an assertion that the Trial Judge breached the guidelines in respect of litigants in person amended by the Full Court in Re F: Litigants in Person Guidelines. … (Our emphasis, footnote omitted)
The mother however contends that failure to follow the guidelines establishes that in failing to give assistance to the mother that she was denied procedural fairness. It is useful to set out those guidelines as they appear in ReF: Litigants in Person Guidelines (2001) 27 Fam LR 517 per Nicholson CJ, Coleman and O’Ryan JJ at paragraph 253:
253. Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.A judge should explain to the litigant in person any procedures relevant to the litigation;
4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9.Where the interests of justice and the circumstances of the case require it, a judge may:
·draw attention to the law applied by the Court in determining issues before it;
·question witnesses;
·identify applications or submissions which ought to be put to the Court;
·suggest procedural steps that may be taken by a party;
·clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias. (Original emphasis)
It is not clear to us in relation to the guidelines therein described in what manner it is asserted that his Honour failed to adhere to the guidelines and we observe that neither in written submissions nor in oral submissions was that failing identified. Having regard to the exchanges between his Honour and the mother we cannot see any basis on which his Honour denied her the right to seek a dispensation from the rules nor has the mother identified what rule might have been relevant to the admission of some material which was apparent to his Honour was not in admissible form. We make the point that his Honour was not aware of what written material there was from the witness, the mother having only informed him that “she has written something down”. The mother conceded that she had no sworn material from the witness and the mother never proffered the document, and in our view, the mother has not pointed us to any obligation upon the trial judge to actively seek out the document in circumstances in which he had been informed that there was a document not in admissible form, and no explanation for it not being in admissible form had been proffered.
Thus, in our view the matters raised in grounds 1(b) and (c) of the Notice of Appeal cannot succeed; ground 1(b), because his Honour was under no obligation to invite the mother to hand up some written document that was not in any admissible form and 1(c) because his Honour did not fail to provide the mother an opportunity to obtain evidence in affidavit form, it is apparent that she had ample opportunity to do so. She provided no explanation as to why she had not.
In addition, in our view, his Honour did not, as submitted by the mother, fail to make any explanation of the matters traversed in paragraphs 53-57 of the Reasons for Judgment but did endeavour to explain on several occasions the problem with the absence of corroborative evidence for the mother. We do not accept as asserted in paragraph 19 of the Appellant’s written submissions that the trial judge had an obligation (presumably in the course of providing a fair trial) to explain that there were provisions within the Rules for her to apply for relief from compliance with the Rules which would have enabled her to put the witness’s statement before the Court. First we note that his Honour had no idea of what form such a statement was in, only that the mother had a “written document”. Having given no explanation as to why she had not obtained a document in admissible form, we cannot see that his Honour was under any obligation to effectively invite the mother to tender a document which she had herself asserted was inadmissible. Counsel for the Appellant has not referred us to any Rule the dispensation with which could have made the evidence admissible and accordingly we do not see any merit in the ground of appeal.
We now turn to the question of the admission of further evidence.
Admission of Further Evidence
Admission of further evidence in the Family Court is governed by s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”) which provides:
(2) Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b)by oral examination before the Family Court or a Judge; or
(c)as provided for in Division 2 of Part XI.
The question of admission of further evidence in the Family Court was dealt with by the High Court in CDJ v VAJ (1998) 197 CLR 172.
The majority (McHugh, Gummow and Callinan JJ) said relevantly at paragraphs 107, 109 and 111:
107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that "special grounds" or "special leave" be shown before the evidence can be adduced. Nor, in contrast to the common law position, must the motion to receive the evidence be designed to set aside the verdict at first instance. Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made.
…
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. (Our emphasis, footnote omitted)
The mother accepts that these passages govern the basis upon which the application to adduce further evidence is to be determined.
The Central Authority had an application before the Court to receive further evidence which they only sought to pursue in the event the Court granted the mother’s application to adduce further evidence and/or determined that as a result of any error on behalf of the trial judge it is required to reconsider the question of consent. An affidavit of the father and declarations from others attached to it dealing with the issue of consent was prepared. Senior Counsel for the mother helpfully consented to the admission of this further evidence on the basis that the Court allowed the admission of further evidence from the mother.
We are not prepared to admit the further evidence for two reasons which we will explain.
The first of those reasons is that it having been conceded that the evidence at trial was not in the form of an affidavit, even before us Senior Counsel for the mother concedes that the material sought to be admitted is still not in the form of an affidavit, and as described by Senior Counsel for the mother is “notice of the evidence that this witness wishes to give” (Transcript of proceedings 5 September 2011, lines 18-19). The task of establishing that the further evidence, if accepted, would demonstrate the order under appeal is erroneous is made significantly more difficult when it remains unclear as to what evidence would in fact be given by the witness proposed to be called and in what form it could be tendered.
Secondly an analysis of the evidence sought to be given, accepting for the purpose of the argument that evidence would be given in the form of a statement now relied on, in our view cannot be supported. When considered against other evidence in the case and other findings by his Honour which are not challenged, in our view, it could not be said that the mother has met the test of establishing that the further evidence would have produced a different result if it had been available at trial.
Dealing with the first of those matters, the mother seeks to adduce further evidence “by way of Declaration or Affidavit of Ms [A]” and filed an affidavit on 22 August 2011 in support of that application. A number of paragraphs of the affidavit are taken up with the explanation by the mother about why she did not have an affidavit at trial, the information she was given about the necessity for an affidavit, and the assertion that she was not told about the capacity to have documents notarised for admission in an Australian Court. We do not need to deal with these matters because, accepting them at face value, it is thus apparent that whatever information the mother had or lacked at the time of the hearing when she was unrepresented, was cured by the time of the appeal when she was represented by Senior Counsel and aware of the way in which material could be admitted. Whatever might have been her position at the time of the hearing, there is no suggestion, nor could there be on the evidence, that the manner in which evidence is to be put before the Court was known to her by the hearing of the appeal. Nothing in the affidavit of the mother indicates why the material sought to be admitted as further evidence remains in an inadmissible form.
Senior Counsel for the mother conceded that the document was not sworn or affirmed and could only be treated as a “written declaration from which it should be inferred that admissible evidence would be available” (Transcript 5 September 2011, page 16, line 42). Senior Counsel for the mother contended that the Court would have discretion to admit this even though it was not in admissible form solely on the basis of s 93A. As it will be necessary to refer to the substance of the written statement in relation to the second reason for our rejection of the application it is convenient to set it out now:
05/04/2011
I under signed [Ms A], born in [City 2] on ... 1957 and resident in [City 3]; declare to have been a witness between [Ms Garning] and [Mr V], the day in which [Mr V] signed the documents to give consent to [Ms Garning] to permanently relocate to Australia with the four daughters.
I remember the day in which I met with them at Bar Sonia, in [City 4]. [Ms Garning] had asked me to witness the signatures on her daughters’ passports.
That day [Mr V] seemed happier than usual and [Ms Garning] had already told me that some time before he had also decided to relocate to Australia.
[Ms Garning] and I went to the bar together, when we met, we got something to drink and we sat at the tables outside, then they started to talk about the move to Australia and discussing jobs and the climate of various zones, even about the taxes I think. I remember asking [Mr V] what we were all doing here if you couldn’t even find work here anymore. They could start a new life and he could even learn English”. He replied that he had already started searching for a job on internet but he trouble understanding properly because they were all in English, so he asked [Ms Garning] if he could go to her house, once finished signing, so that she could translate a couple of internet sites. We spoke for a while about the opportunities in general that Australia had to offer.
I remember it all very well, perhaps because I was a little surprised at seeing him so tranquil and happy. He was very polite with me and [Ms Garning], he signed the documents very peacefully and honestly, to me, he seemed enthusiastic about it.
After we had signed the documents we all went to [Ms Garning’s] apartment, she and I in my car and him in his. [Ms Garning] asked me to go up with her, seeing as [Mr V] had had violent behaviour in the past and she didn’t want to be alone with him. I already knew about these episodes, [Ms Garning] had spoken to me about them many times and even my daughter had told me about some bad experiences of when she was at the [V] house, with the four daughters.
We went up in to the apartment, I remember that [Mr V] said it would be better if [Ms Garning] and the girls went before him as he had some things to fix up. However he seemed happy for them to move in the meantime and he told me about several searches he had done on the internet for jobs and houses. I told him that I would have come if I could! I think [Mr V] stayed for over an hour with [Ms Garning] looking at websites that offered employment and looking at real estate sites.
They never spoke about living together but I think [Mr V] asked [Ms Garning] if she could look for an apartment or a house for him seeing as she would arrive before him. After [Mr V] had left [Ms Garning] told me that she was very happy about the way it went but she was however she was worried that [Mr V] could change his mind again. I know he did that often regarding various things.
I remember that that day the two were talking about permanent relocation, it was obvious that it was not about a holiday, in fact that is all they spoke about. That day [Ms Garning] also told me that the Australian embassy had told her that once all the signatures had been received they would see to hurry up the procedures, to have the passports as soon as possible, so as to avoid any kind of complication.
In faith,
[Ms A]
Signed
I undersigned [Ms S], born in Rome
Fiesole on … 1985 declare the above
above
Signature is that of [Ms A]Signed
I undersigned [Ms N], born in
on … 1958 declare that the
Signature is that of [Ms A]
Signed
This is not a document which has been sworn or affirmed or notarised in any way.
It is important in our view when addressing the admission of further evidence under s 93A(2) for there to be particularity about the evidence because of the remedial nature of the discretion reposing in the Court. In Wills v Australian Broadcasting Corporation (2009) 253 ALR 228 Rares J, with whom North and Emmet JJ agreed, in relation to s 27 of the Federal Court Act 1976 (Cth) which is in identical terms to s 93A of the Act said:
52.The principles upon which the discretion to admit further evidence in an appeal under provisions similar to s 27 of the Act may be exercised were considered by the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172; 157 ALR 686; [1998] HCA 67 at [107]–[111] (CDJ). In essence, the court is at large in considering whether, under the section, fresh evidence ought be received, but a number of discretionary considerations developed by the common law may be relevant to the exercise of that discretion (although not as binding rules in the way that the common law fixed). The discretion is more ample than the common law provided. The issues involved in the appeal will point to the considerations which are, or are not, extraneous to the exercise of the power: CDJ at [108].
Support for that proposition was given by the Full Court in Sheldon & Weir [2011] FamCAFC 212 where it was said at paragraph 237:
237.General principles of statutory interpretation provide further support for the Court’s conclusion that s 93A should not be construed in the narrow manner contended for by Senior Counsel for the respondent.
However, s 93A(2) is concerned with evidence, and the nature of the manner in which further evidence on questions of fact may be given is instructive:
Section 93A(2) …
(a) by affidavit; or
(b)by oral examination before the Family Court or a Judge; or
(c)as provided for in Division 2 of Part XI.
The latter relates to the use of videolink, audiolink or other appropriate means of giving testimony, making appearances and submissions etc.
What is instructive in this case is that the further evidence sought to be admitted is not in a form recognised by s 93A(2), a fact which was admitted by Senior Counsel for the mother.
Support for the view that the further evidence sought to be admitted must be in the form consistent with s 93A(2) is to be obtained from the comments of the High Court in CDJ v VAJ (supra) at paragraph 109:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. … (Our emphasis)
The problem which the mother must overcome in this case is that what is sought to be put before the Court is not evidence in an admissible form and Senior Counsel for the mother was not able to direct the Court to any authority which would support the admissibility of the unsworn material sought to be admitted as further evidence. Neither did Senior Counsel proffer the witness to give oral evidence of what was in the unsworn document.
Section 21 of the Evidence Act 1995 (Cth) deals with the question of evidence of witnesses and says:
21(1) A witness in a proceeding must either take an oath, or make an affirmation, before giving evidence.
The words “declare” in the document do not signify the deponent swears or affirms the information contained in the document: Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd (2008) 217 FLR 366. As we pointed out to counsel in argument, it would not conceivably have been difficult in the time since the hearing for the document to have been in an admissible form. Yet it was not, without explanation. The problem identified by the Court in argument and not met by Senior Counsel, was that it would seemingly be impossible for the conditions described in paragraph 109 in CDJ v VAJ (supra) to be met without the “evidence” being in admissible form. That is because the admission of further evidence is dependant on it being “accepted” and even then the remedial powers of the Court would not be exercised unless that evidence demonstrated the order under appeal was erroneous. If “accepted” means accepted as to its probative value and, as the document sought to be admitted here was not sworn evidence, it is difficult to see how it could ever have probative value when weighed against other evidence that was sworn and in admissible form.
The remaining basis upon which the mother relied to support the admission of the witness’s declaration was Regulation 29 of the Regulations. Regulation 29 provides that a document attached to or given in support of an application requesting the return of a child or any document attached to or given in support of that application or request is admissible as evidence of the facts stated in that application, request or document. Senior Counsel for the mother conceded that Regulation 29 did not apply to the Appellant who was the Respondent to proceedings but in fact the Regulation is even more limited and applies to proceedings only in which “the applicant is a responsible Central Authority”. In other words it is not the father who has the benefit of the amelioration of the evidentiary requirements under Regulation 29 as the mother contended, but the Central Authority. There are obvious policy reasons for such provision when trying to obtain evidence in support of an application from a left behind parent in another jurisdiction.
The mother relied upon the comments of Le Poer Trench J in Director-General, Department of Human Services & Harries [2010] FamCA 1129 where his Honour, at paragraphs 146-147, discussed the admissibility of a particular document in relation to Regulation 29:
146.The Regulation creates an uneven playing field in relation to the applicant and respondent to proceedings under the regulations. In the administration of justice in Australia that is a most unusual provision. This is a Court of law in which justice is to be dispensed. While understanding the reason behind the wording of Regulation 29, the Court, in my view, needs to ensure that the regulation is not used in a manner which was clearly not intended.
147.The operation of the regulation operates most unfairly against the respondent mother in relation to this document. To the extent that there is a discretion in the Court not to give weight to that evidence I would exercise that discretion in favour of the respondent.
We observe that his Honour was dealing with a very different fact scenario in which the left behind parent was seeking to rely upon Regulation 29 in relation to a witness in Australia where reliance upon that section was unnecessary, and his Honour thought unfair to the respondent mother. That is not the position in this case and we do not see that given the opportunities to have a document in admissible form that any unfairness is occasioned to the mother
Even if we are wrong about the admission of the evidence in admissible form, the second part of the test in CDJ v VAJ (supra) as expounded in paragraph 109 is that the evidence sought to be tendered, if accepted would demonstrate that the order under appeal is erroneous. This requires us to consider whether, if the evidence were admissible and accepted (as to its truth) it would be sufficiently probative to render the result reached by his Honour erroneous. In our view the “evidence” even if admitted does not reach that standard.
First, it required the witness to provide the evidence in admissible form, a matter of some conjecture and it remains speculative as to what admissible evidence would be given. But even if we were to adopt the most liberal view of the statement, and assume it to be ultimately capable of admission, the statement itself is not so clear and unequivocal that, weighed against the other evidence, it would reasonably render the decision erroneous. The few parts of the statement which could conceivably advance the mother’s case if ultimately advanced on oath or affirmation by the proposed witness, are expressed as conclusions, which as the terms in which they are expressed make clear, involve subjective interpretations of words or actions which are not identified, by a person who is sympathetic to the mother’s cause.
Even adopting the broadest interpretation of s 93A, it could not be concluded that accepting the statement as evidence would demonstrate appealable error. Even if the conclusions urged by the proposed witness were accepted, the trial judge’s findings of fact would not be rendered erroneous. Nor would any inferences he drew, or conclusions he reached in reliance upon those findings. His Honour may have made different findings, or reached a different conclusion, but that is not the test.
In the end however, it is sufficient to say that the evidence proffered does not comply with s 93A(2) and no explanation for its non compliance is given. If the further evidence were allowed it would have to be in a form different from that which the Court would be now considering and no assessment of its acceptance could be made by this Court until it was in that form. The highest that the witness’s statement could be put, and which Senior Counsel put it, in fairness, was that this is evidence which might be given. That, in our view, would not be sufficient to meet the test in CDJ v VAJ (supra). We note further that no guarantee that this evidence would be given by the witness could or was made.
Accordingly we would not accede to the mother’s application to adduce further evidence in the form of an unsworn statement and for the reasons already expressed would dismiss the appeal. It follows that we also reject the Respondent’s application to adduce further evidence.
Costs
As we have received no submissions in relation to costs we propose to order that submissions be filed in the event that the Central Authority wishes to seek an order for costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and Coleman J) delivered on 9 March 2012.
Legal Associate:
Date: 9 March 2012
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