Gilles & Irby
[2016] FamCAFC 13
•11 February 2016
FAMILY COURT OF AUSTRALIA
| GILLES & IRBY | [2016] FamCAFC 13 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM ORDERS – Where the appellant mother reviewed the Senior Registrar’s orders which placed the child on the Family Law Watchlist – Where the trial judge ordered that, in addition to the Senior Registrar’s orders, the mother should also be placed on the Family Law Watchlist – Where the Full Court found that trial judge had an obligation to clarify the orders sought, an obligation to explain those orders to the self-represented mother as a means of ensuring that the mother understood the additional case she was meeting, and finally, to afford the mother an opportunity to consider the same and respond. |
| Family Law Act 1975 (Cth) ss, 37A, 68B, 69ZT, 93A, 94, 114(3), 117 and 121 Agius & Agius (2010) FLC 93-442 |
| APPELLANT: | Ms Gilles |
| RESPONDENT: | Mr Irby |
| INDEPENDENT CHILDREN'S LAWYER: | Louise Coady |
| FILE NUMBER: | SYC | 7577 | of | 2010 |
| APPEAL NUMBER: | EA | 41 | of | 2015 |
| DATE DELIVERED: | 11 February 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy & Austin JJ |
| HEARING DATE: | 20 August 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 March 2015 |
| LOWER COURT MNC: | [2015] FamCA 259 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr C Sperling |
| SOLICITOR FOR THE RESPONDENT: | John Spence & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: | Louise Coady Family Lawyers Pty Ltd |
Orders
Amended on 16 February 2016 pursuant to rule 17.02 of the Family Law Rules 2004
The mother’s application for leave to appeal the order made by Rees J on 9 March 2015 to the effect that the mother be restrained from leaving Australia be granted.
The appeal against that order be allowed.
The order made by Rees J on 9 March 2015 to the effect that the mother be restrained from leaving Australia be set aside.
The mother’s application for leave to appeal the remaining orders of Rees J made on 9 March 2015 (as corrected by this Court) be dismissed.
Each party shall pay their own costs of an incidental to this appeal.
The Appeals Registrar is directed to prepare, seal and issue to each of the parties and the Independent Children’s Lawyer the interim orders forming Annexure A to these orders.
Pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth), an account of these proceedings, namely the non-anonymised reasons of the Full Court herewith, be authorised for publication to:
(a) The Commissioner, Australian Federal Police and all such officers as he might properly authorise including the Officer in Charge of the Family Law Watch list and officers under his or her command; and
(b) The Director, Immigration and Border Protection and any officers whom he or she might properly authorise including all such officers as might be concerned in the maintenance and enforcement of the Family Law Watch list.
NOTATION
A.In order to give clarity to the orders which apply to the parties and to the child by reason of the orders of this Court, Annexure A to these Orders sets out the current interim orders applicable to the parties and the child.
ORDERS OF THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
ANNEXURE A TO ORDERS MADE 11 February 2016
PENDING FURTHER OR OTHER ORDER IT IS ORDERED THAT:
1. The mother surrender within 7 days of these orders and deliver up to the Registrar of the Family Court of Australia at Sydney, all Country C passports currently held by the mother relating to the child, B, born … 2007, and all passports currently held by the mother that include the child, B, and such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court.
2. The mother within 7 days of these orders surrender and deliver up to the Registrar of the Family Court of Australia, Sydney, all Country C passports and Australian passports currently held by the mother of the child, B such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court, provided that the father give written consent to the release of the passports in the event the mother wishes to return to Country C to visit her family without the child B.
3. The mother forthwith advise the court of any pending application made by her for a Country C passport in the name of the child B.
4. The mother forthwith advise the court of any pending application she has made for a Country C Birth Certificate (the Country C Nationality) for the child B.
5. The father Mr Irby born … 1956, his servants and/or agents and the mother Ms Gilles born … 1969, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child B born … 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the watch list until the court orders its removal.
6. That the Australian Federal Police be requested to confirm the departure from Australia of the mother, Ms Gilles born … 1969.
7. It is requested that the confirmation be given to the father at [father’s address] or the Independent Children’s Lawyer, [at the ICL’s address].
8. That the mother, Ms Gilles be restrained from spending time with or taking possession of the child, B from the commencement of school Monday to the cessation of school Friday each week which is the time the child lives with the father.
9. The father and/ or the independent children’s lawyer be at liberty to provide a sealed copy of these orders to the child’s school and NSW Police and any other authority to ensure compliance with these orders.
10. The Court requests that to the extent that it is possible, the Australian Federal Police note the name of the respondent mother Ms Gilles, date of birth … 1969, for the purposes of close scrutiny to ensure that the child B, a male born … 2007, does not leave the Commonwealth of Australia, the name of the said child having been placed on the Airport Watch List at the request of this Court made on 12 November 2014.
NOTATION
It is noted that no order is made restraining the mother herself from leaving the Commonwealth of Australia provided that the child B, does not leave Australia.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilles & Irby 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 SYDNEY |
Appeal Number: EA 41 of 2015
File Number: SYC 7577 of 2010
| Ms Gilles |
Appellant
And
| Mr Irby |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
A number of interim orders were made by a Senior Registrar in November 2014, the substantive effect of which was to prevent a child, B (“the child”), from leaving Australia and to place him on the Family Law Watchlist maintained by the Australian Federal Police.[1] The child’s mother reviewed those orders.[2] Her review was heard by Rees J. The mother seeks leave to appeal her Honour’s order made on 9 March 2015.
[1] Also referred to as Airport Watch list.
[2] Family Law Act 1975(Cth) (“the Act”), s 37A(9), (10).
The important issues before both the Senior Registrar and her Honour were, it will be noted, determined on an interim basis pending the trial of the father’s application for final parenting orders. That consideration brought with it as a necessary consequence, a truncated enquiry based on evidence which is yet to be tested.[3]
[3] See, for example, the comments of this Court in Chapa & Chapa (2013) FLC 93-538, at [9]-[12].
The necessary parameters of the interim inquiry in this case applied to acute issues. The mother, who is from Country C, said that she wished to take the child (then aged eight) to Country C for six months. She has all of her family there including a sick mother. She had, she said, been trying to take the child to Country C for “seven years now”.[4] She promised she would return the child to Australia at the end of the six month period. The father, who is from Country F, had been the child’s primary carer since 2010 when parenting orders were made. The orders, varied in 2014, saw the child in his father’s care during each week and in the mother’s care only on weekends at the time of the proceedings before the Senior Registrar and her Honour. The father is adamant that the mother’s true intention is to relocate the child permanently to Country C and, if he was permitted to travel there for six months or any other interim period, he would not be returned. Country C is not a signatory to the Hague Convention.[5] He asserts that the mother has strong ties to Country C – her family is there, she owns a home there and can obtain employment there – and, according to him, she would there have the benefit of a legal system that would see him having little say in the child’s care arrangements.
[4] Transcript of proceedings, 14 November 2014, p 4.
[5] Convention on the Civil Aspects of International Child Abduction 1980.
The matrix created by the parties’ assertions and counter-assertions is complicated significantly by the fact that the child has been diagnosed with, and treated for, autism by qualified medical practitioners. The mother refuses to accept any such diagnosis. She has not played any part in the child’s treatment or therapy.
What Orders Did Her Honour Make?
Her Honour was empowered, upon the review of the Senior Registrar’s orders to “…make such order or orders as [she] consider[ed] appropriate with respect to the matter with respect to which the power was exercised”.[6] The review must be heard “as an original hearing”, in which “…the court rehears the whole matter and does not simply review the decision of the original court”.[7] Her Honour’s task was to “…proceed as if [she] was exercising that power afresh”.[8] In that event, what the Senior Registrar had done before her Honour became seized of the review, “…is irrelevant, except in so far as it is necessary to know that that he has [made orders] that being the justification for the court’s exercise of jurisdiction”.[9]
[6] The Act, s 37A(10).
[7] Family Law Rules 2004 (“the Rules”), Note to r 18.10(1).
[8]Stredwick and Stredwick (1986) FLC 91-724 per Nygh J; Harris v Caladine (1991) 172 CLR 84, at pp 96, 124 and 125.
[9]Cummins v McKenzie & Another [1979] 2 NSWLR 803, at 809.
It follows that the consequence of a review should be the making of “fresh” orders on the merits in respect of all such issues as are joined between the parties. Her Honour did not do so. Her Honour made only one order, the substantive effect of which was to restrain the mother (as distinct from the child) from leaving Australia and an accompanying request to place the mother’s name on the Family Law Watchlist. No orders were made by her Honour of the type made by the Senior Registrar by which the child was prevented from travelling outside of Australia nor any attendant orders relating, for example, to the issue of passports.
However, her Honour’s reasons refer to the Senior Registrar’s orders being “appropriate in the circumstances” and her Honour said specifically in those reasons, “I confirm those orders”. That statement, together with her Honour’s findings at [18] and the transcript of the proceedings before her Honour, suggest clearly that her Honour’s intention was to pronounce orders identical to the Senior Registrar’s orders and to add the order pertaining to the mother which her Honour made, to which reference has just been made.
The mother was self-represented before us (as she was before her Honour and the Senior Registrar) and her English, although sufficient is, with respect, inadequate.[10] As will shortly be seen, her grounds of appeal and written outline of argument are plainly deficient. Equally, however, there can be no doubt that the mother’s challenge assumes that the Senior Registrar’s orders were intended to be incorporated into the order made by her Honour. This appeal lies from her Honour’s order, not from the Senior Registrar’s orders. There can be no appeal (or application for leave to appeal) against the orders made by the Senior Registrar, which the mother plainly assumes are incorporated into her Honour’s orders, unless in fact her Honour’s orders incorporate those orders.
[10]The mother appeared before us with the assistance of an interpreter but conducted herself much of the interchange between her and the bench.
As a general proposition, “…orders are generally framed with a view to their being self-contained and self-explanatory”.[11] Equally, however, “[c]ourts have an inherent or implied jurisdiction to amend judgments which do not correctly state what was actually decided and intended” and although that power “is conferred by an express rule of court [R 17.02 Family Law Rules 2004], … it exists whether provision is made by express rule or not”.[12] This Court, exercising appellate jurisdiction, has the same power in respect of its orders and that power, too, exists whether provision is made by express rule or not. In Burrell v R,[13] the High Court said “[t]he power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do”.
[11] Athens v Randwick City Council (2005) 64 NSWLR 58, at [29] per Hodgson JA.
[12]Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206, 209 (“Elyard”) per Lockhart J. See also, DJL v The Central Authority (2000) 201 CLR 226.
[13](2008) 238 CLR 218, at [20]-[21] per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ.
The question which arises in this case is whether an “accidental slip or omission” that might otherwise be susceptible to correction by her Honour can be corrected by this Court. We do not have the benefit of submissions on this issue and are reluctant to embark upon a consideration of it in those circumstances. However, the substantive matters which are the subject of the orders under consideration are important, including affecting the rights of a self-represented mother who does not have English as her first language. If it is necessary for her Honour to correct orders which, as it seems to us clearly and manifestly do not reflect her true intention, it will be necessary for the parties (and in particular the appellant mother) to return to her Honour so as to have the orders corrected only to then return to this Court at a time and place when we can reconvene so as to address arguments which plainly pertain to the orders as her Honour intended them to be.
The issue which we confront was referred to in Agius & Agius.[14] However, as the issue was not discussed before that Full Court, the Court decided that “the matter should be dealt with by the Federal Magistrates Court”. The issue there, however, was slightly different. In that case, the orders appealed were clear, albeit containing a slip. There was no impediment to the Court hearing and determining the merits of the appeal by reference to the orders as made by the court below. That is, the slip could be addressed consequent upon the determination of the merits of the appeal. As has been seen, the position here is quite different.
[14] (2010) FLC 93-442, at [173].
Many authorities in this and other courts have directed attention to the question as to whether a particular error, or accident, or slip can be the subject of a power which is undoubted. The question for us is whether the relevant power exists to correct the order of the court below. We have been unable to find any authority which deals specifically with that question, although at least one writer has said that “…the courts have inherent jurisdiction to correct slips at any time, including slips made by the court appealed from”.[15] That proposition is referenced to the decision of the High Court in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2).[16] However, two matters should be observed. The slip in question was in respect of the inadvertence of counsel before the High Court and the orders that court would otherwise have made (albeit affecting the interest payable on damages in respect of the trial orders). Secondly, the case concerned the power of a common law court.
[15]Dean Mildren, The Appellate Jurisdiction of the Court in Australia, (The Federation Press, 2015), p 167.
[16](1982) 151 CLR 590.
As has been seen, this Court’s power to correct slips or omissions of the type under discussion is not confined to power granted by the slip rule, but is also referable to what in other courts is referred to as their “inherent jurisdiction”[17] but which in this Court must be found in “…powers expressly or by implication conferred by the legislation which governs it”.[18] Of course, a power may not be granted by the Rules that does not have a foundation in those same express or implied legislative powers. Those powers are to be ascertained as “…a matter of statutory construction", noting that the court also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.[19]
[17]See Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642 and Newmont Yandal Operations Pty Ltd v J Aron Corp [2007] 70 NSWLR 411.
[18]DJL v The Central Authority (2000) CLR 226 at [25]. See also Allesch v Maunz (2000) 203 CLR 172.
[19]DJL (above), at [25], quoting Parsons v Martin (1984) 5 FCR 235, at 241.
The High Court has made it clear that considerable caution needs to attend any assumption as to the implied powers which this Court might have: “[t]he Family Court does not have inherent powers. It has powers expressly conferred upon it by legislation and powers that may be implied from the terms of such legislation”.[20] In Allesch v Maunz,[21] the High Court, having confirmed that appeals to this Court are by way of rehearing, said:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. …[22]
(Citations omitted; emphasis added)
[20]Allesch v Maunz (above), at [44] per Kirby J. See also, for example, DJL (above); CDJ v VAJ (1998) 197 CLR 172, per McHugh, Gummow, Callinan JJ.
[21] Allesch v Maunz (above).
[22] Ibid, at [23] per Kirby J.
Section 93A of the Act provides relevantly that “[t]he Family Court has jurisdiction with respect to matters arising under this Act or under any other law made by the Parliament in respect of which … appeals referred to in section 94 are instituted”. Section 94 provides for appeals from a “decree of the Family Court, constituted otherwise than as a Full Court exercising original or appellate jurisdiction”. Section 94(2) provides, relevantly, the source of power for this Court exercising appellate jurisdiction:
(2)Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate.
In DJL v The Central Authority,[23] it was held there was no power in the Full Court to re-open its orders after entry because “…no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the [Family Law Act 1975 (Cth) (the Act)]”. However, the power to correct accidental slips or omissions in orders is one of a narrow class of exceptions.[24]
[23]DJL (above).
[24]See, for a recent example, Burrell v R (above), at 224-225 per Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ and Vadisanis & Vadisanis and Anor (2015) FLC 93-671.
The context within which recourse to an implied power is sought is also important. In the case of the application of an implied power to correct accidental slips or omissions, “…[i]t may be trite, but it is worth repeating that the slip rule exists to avoid injustice”.[25] The express words used within s 94(2) of the Act are redolent of wide power, but they are expressed as powers applicable “upon an appeal” and are used in juxtaposition to the power to order a re-hearing, quintessentially a remedy available only upon the establishment of appealable error. The passage earlier quoted from Allesch might be seen to pertain.
[25]Elyard (above), citing Monaco v Arnedo Pty Ltd (SC (WA), Full Court, 29 November 1994, unreported) per Malcolm CJ, at 5.
However, the essence of the appeal Court’s powers is to correct error so as to achieve justice. The essence of a court’s power to correct accidental slips or omissions is also to remedy manifest injustice. While the wide powers given to this appellate Court in, relevantly, s 94(2), are ordinarily exercisable when “the order that is the subject of the appeal is the result of some legal, factual or discretionary error”, we incline to the view that the power to “make such decree or decision as, in the opinion of the court, ought to have been made in the first instance” carries with it an implied power to correct accidental slips or omissions in the order appealed which are necessary so as to permit the appellate Court to exercise the jurisdiction and powers conferred expressly upon it.
We consider her Honour’s omission from the orders made of the orders which she “confirmed” constitutes an accidental slip or omission manifest from her Honour’s clearly expressed intention. We consider we have the power to, and should, correct her Honour’s orders by incorporating the Senior Registrar’s orders into her Honour’s orders. As we have earlier said, her Honour did not delineate the orders which she “confirmed”. Plainly, she intended to confirm the orders with relevant substantive effect and not orders providing for adjournment, notice, service and the like which were either discharged by performance or which were otherwise redundant by reason of subsequent events. The orders reproduced reflect those consequences and have been renumbered accordingly. Order 1 and its “request” is the order made by her Honour on 9 March 2015, Orders 2 – 10 were made initially by the Senior Registrar on 12 November 2014 and Order 11 was made initially by the Senior Registrar on 14 November 2014.
The mother’s application for leave to appeal pertains, then, to the order made by her Honour on 9 March 2015 imposing the restraint on the mother earlier referred to and also to the orders made by the Senior Registrar on 12 and 14 November 2014 which are now to be treated as orders made by her Honour on 9 March 2015 by reason of the correction to which we have referred.
Her Honour’s Orders As Varied
The result of our determination in respect of the matters just discussed is that the mother seeks leave to appeal the following orders:
1.That pending further order [Ms Gilles] (“the mother”) born … 1969 be restrained from leaving the Commonwealth of Australia.
IT IS REQUESTED
That the Australian Federal Police give effect to the order 1 herein by placing the name of the said mother [Ms Gilles] born … 1969 on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the mother’s name on the Watch List.
2.The mother surrender within 7 days of these orders and deliver up to the Registrar of the Family Court of Australia at Sydney, all [Country C] passports currently held by the mother relating to the child, [B] born … 2007, and all passports currently held by the mother that include the child, [B], and such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court.
3.The mother within 7 days of these orders surrender and deliver up to the Registrar of the Family Court of Australia, Sydney, all [Country C] passports and Australian passports currently held by the mother of the child, [B] such passports be retained by the Registrar and not returned to the mother without the prior written consent of the father or further order of the court, provided that the father give written consent to the release of the passports in the event the mother wishes to return to [Country C] to visit her family without the child [B].
4.The mother forthwith advise the court of any pending application made by her for a [Country C] passport in the name of the child [B].
5.The mother forthwith advise the court of any pending application she has made for a [Country C] Birth Certificate (the [Country C] Nationality) for the child [B].
6.The father [Mr Irby] born … 1956, his servants and/or agents and the mother [Ms Gilles] born … 1969, her servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [B] born … 2007 from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to the order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the said child’s name on the watch list until the court orders its removal.
7.That the Australian Federal Police be requested to confirm the departure from Australia of the mother, [Ms Gilles] born … 1969.
8.It is requested that the confirmation be given to the father at [father’s address] or the Independent Children’s Lawyer, [at ICL’s address].
9.That the mother, [Ms Gilles] be restrained from spending time with or taking possession of the child, [B] from the commencement of school Monday to the cessation of school Friday each week which is the time the child lives with the father.
10.The father and/ or the independent children’s lawyer be at liberty to provide to the child’s school and NSW Police and any other authority to ensure compliance with these orders.
11.The Court requests that to the extent that it is possible, the Australian Federal Police note the name of the respondent mother [Ms Gilles], date of birth … 1969, for the purposes of close scrutiny to ensure that the child [B], a male born … 2007, does not leave the Commonwealth of Australia, the name of the said child having been placed on the Airport Watch List at the request of this Court made on 12 November 2014.
NOTATION
It is noted that no order is made restraining the mother herself from leaving the Commonwealth of Australia provided that the child [B], does not leave Australia.
The Mother’s Challenges
Each of the mother and father represented themselves before her Honour, as did the mother before this Court. Each party’s command of spoken and written English is sufficient but each has deficiencies borne of it being a second language.
The mother’s grounds of appeal as drafted are:
1.This orders was made by the Judge REES and the orders was made by the SENIOR REGISTERAR CAMBELL are against the australian family law. the court was made to give us the rights not to ristrect me me from travelling. See Family law: sub-sections 65Y and 65Z. Also the equall, shared parental responsibilities.
2.Also these orders are against our freedom and our human rights which is approved by the UNITED NATION in ALL CONVENTION Countries.
[Errors in original]
Given the mother’s self-representation and language difficulties, we accorded to her – with, in the circumstances, the sensible concurrence of counsel for each of the father and the Independent Children's Lawyer (“the ICL”) – a significant degree of indulgence and latitude in seeking to ascertain the true gravamen of her challenge/s.
Doing the best we can, we discern the mother’s challenges to comprise, first, an assertion that her Honour’s orders were not open to her on the evidence before her. Secondly, the mother asserts, in effect, that her Honour’s order (order 1 of those outlined earlier in these reasons) was made without her having had a fair opportunity to be heard in respect of it. As to the latter, the mother’s written outline says for example:
Justice Rees … said in her Reason for Judgement that “… I confirm those orders” … It is not true to add an order which is opposed by Senior [Registrar] Campbell.
That comment derives from the fact that the Senior Registrar’s 12 November 2014 orders adjourned the father’s application “…for possible interim hearing limited to the issue of orders to give effect of restraining the mother’s movements outside the Commonwealth of Australia” (emphasis added) and comments made by the Senior Registrar during the proceedings leading to that order. An example alluded to by the mother in her written submissions is:
MS FALLOON:[26] Your Honour, I think it’s a very vexed question as to whether you can make an order that would prevent the mother from leaving Australia. I think she is an Australian citizen; is that right?
[MR IRBY]: Yes.
MS FALLOON: She is an Australian citizen, but ‑ ‑ ‑
THE REGISTRAR: See, if I was making a relocation order, I couldn’t make an order that she return to live somewhere, could I? I mean ‑ ‑ ‑
MS FALLOON: No, no, no.
THE REGISTRAR: ‑ ‑ ‑ the jurisprudence is quite clear. The orders are in relation to the children.
MS FALLOON: That’s right. But ‑ ‑ ‑
THE REGISTRAR: Restraining the movements of an adult citizen ‑ ‑ ‑
MS FALLOON: Yes, exactly.
THE REGISTRAR: ‑ ‑ ‑ are very, very dangerous.[27]
[26] Then counsel for the ICL.
[27] Transcript of proceedings, 12 November 2014, p 9.
As will shortly be seen, both the Senior Registrar and counsel for the ICL were, with respect, correct in expressing significant caution about exercising the court’s powers to restrain the free movement of a parent.
Those concerns found expression in the adjourned proceedings which took place before the Senior Registrar later that week and led, ultimately, to the Senior Registrar formulating an order that did not seek to restrain the mother’s freedom of movement yet sought to maximise the potential for any removal of the child from Australia by her to be detected and prevented. That order is order 11 of the reformulated orders set out earlier in these reasons.
Orders Restraining The Child From Leaving Australia
It will be recalled that the interim orders sought by the father restraining the mother from taking the child from Australia, together with orders in relation to passports and the like, occur in the context of proceedings for final relief that sought to effect changes to the child’s existing parenting arrangements.
We have earlier referred to the central contentions of the parties relevant to the child accompanying his mother to Country C and also to the fact that the father has been the child’s primary carer since orders were made in 2010, which such care has included him assuming the sole responsibility for managing and having treated the child’s autism. Her Honour had reference to a report from a Family Consultant who spoke of the ramifications for the child of his disability. The mother chose not to participate in the assessment by the Family Consultant.
The restraint on the child’s travel outside of Australia with his mother and attendant, orders preventing the issue of passports in his name and the like, was based on a number of findings emanating from assertions made by the father. Those assertions were, it seems, largely uncontradicted by the mother but that should be treated with considerable caution given her self-representation and her limited command of English.
In broad summary, the father asserted as follows. He is from Country F, not from Country C; the mother, as a Country C national, would potentially have “superior rights over the father”, including the right to “…care [for] [the child] until such time as he is 12 years old”. The mother has property in Country C which includes a unit in which she and the child would live. The mother has family, including her mother, sister and brother, in Country C. In addition, he contended that:
· A Country C passport can issue to a child without the consent of a father;
· The mother can add the name of a child to a Country C passport simply by handwriting the name of the child in the middle pages of the passport;
· Customs and Border Protection (Australia) scan only the front of the mother’s passport at the point of departure and if the child’s name was in the middle pages it would not be detected;
· The mother had applied for an Australian passport for the child, but that was refused because the father did not consent to its issue; and
· The mother had booked one way tickets to Country C for her and the child towards the end of 2014.
The father’s affidavit filed 17 October 2014 (prepared by solicitors on his behalf) made no mention of any concerns founded on the assertions about what may be done in respect of a Country C passport or the actions of border officials. The father’s subsequent affidavit, prepared on his own account, filed on 11 November 2014 (the day before the first hearing before the Senior Registrar) deposes to him having “contacted the [Country C] Consulate in Sydney”. A hearsay conversation with an unnamed person on an unspecified occasion is said to found the assertion that a child’s name can be added by hand. A further hearsay conversation with an unnamed person on an unspecified occasion is deposed to with “Customs and Border Protection at Sydney Airport”. It is asserted relevantly that this conversation reveals that the front page of a passport is scanned on departure and “[the child]’s name would be in the middle pages and not be detected”.
No details of the conversations were given and by its nature the evidence consisted of second hand accounts being offered by a person for whom English is not their first language. No documents were produced by the father then, or have been since, confirmatory of what is deposed to.
It might be noted that the Senior Registrar expressed his concerns about the reliability of the evidence in the very context of the father seeking an order before him of the type ultimately made by her Honour. The Senior Registrar expressed the concern that, “if I had the power, [would] the state of the evidence as it currently stood … allow me to do that”. Counsel for the ICL had earlier pointed out that “…we just don’t have embassy officials or border control officers here to tell us what is possible”.[28] Subsequently, the Senior Registrar permitted the ICL to inform him from the bar table of a conversation (also hearsay) that the ICL had engaged in with an unnamed person “at the [Country C] embassy or consulate” who advised that:
…that endorsement process which the father sets out in his affidavit as being something that the mother could obtain, ie, stamping – putting the child’s name somewhere in her passport, stamping it, and that’s it – the information that the ICL obtained, according to her instructions to me this morning, is that that is not possible without the father’s consent.[29]
[28] Transcript of proceedings, 14 November 2014, p 6.
[29] Ibid, p 8.
Despite its admissibility by reason of, in part, s 69ZT of the Act, and by the proceedings being interlocutory, portions of the father’s evidence nevertheless strike us as somewhat remarkable and give rise to significant disquiet about its reliability.
Her Honour was aware of the limitations inherent in the evidence:
16.I am conscious of the fact that the evidence which the father gives is evidence of conversations which he has had with unnamed consular officials. I am also conscious of the fact that there is no evidence from [Country C] consular officials before me of the ability of the mother to obtain a passport for the child. The mother has applied for an Australian passport, but that passport has been refused because the father did not consent. The father further tells the Court that he is not [from Country C] because he is of [Country F] nationality and has never lived in [Country C], and it is clear from that which has fallen from the mother in the course of argument that in [Country C] she would have the right to the care of the child until such time as he 12 years old.
The circumstances of the child’s disability, the father’s historical role in his care and that Country C is a non-convention country with a different legal system to ours, are important factors in giving weight to the admissible hearsay evidence to which we have referred in assessing risk and any steps for the amelioration of the assessed risk. Tellingly, however, evidence from the mother herself lends very considerable weight to the father’s concerns and is suggestive of a significant risk that the mother’s mooted interim stay in Country C would see the child not returned to Australia.
The interim proceedings occurred in the context of proceedings in which the mother seeks final relief to the effect that the child live with her in Country C. An affidavit filed by the mother on 4 March 2015 contains much more than a hint that the mother intends to not return to Australia if permitted to travel there in the interim. The mother referred to Australia as a “big jail”, a statement familiar to sentiments she expressed in her material before this Court. She also deposes:
[Country C] is more better than Australia. my son [B] will live happily there. My father built new house … and gave me a small unit there to live with my own son in [Country C’s capital] city.
To similar effect, the mother told her Honour:
…The Australian dollar is very higher, but we can live here – happy in [Country C] and my son will get good studies and good future. I stayed ere for eight years to see what will happen for my son, but I see every time the father go seeks for orders or records from the doctor my son has a disability; I swear that my son doesn’t have any disability, but this is the people used to live here … for this report. And I am on job search now. I … a lot of jobs opportunity … but I’m not … to any one of them, but in [Country C] I easily can find job. I need to know that we live here because I know that and I believe in that.
I know that the father has the right to see his son, as me. And if we go [Country C] we will come. This is my promise. Because I know that and I believe that. If we live in Australia we will live forever, ut (sic) if we didn’t take ay (sic) right here we will go [Country C] because Australia and [Country C] are the same. There is not right in [Country C] and we don’t have right here.[30]
(Ellipses in original transcript)
[30] Transcript of proceedings, 9 March 2015, p 11.
In addition to the mother’s evidence there was clear evidence before her Honour from a Family Consultant of adverse consequences for the child if the mother did not return the child to Australia. He would suffer from the absence of his primary carer to whom he was closely bonded. He would be living in an unfamiliar country surrounded by an unfamiliar dominant culture with a parent who did not accept that he had a disability.
Her Honour’s reasons indicate that she was conscious that the respective contentions of the parties needed to be weighed in the context of evidence the veracity and reliability of which would be tested at a trial.[31] The conclusion that her Honour reached that orders should be made preventing the child from being removed from Australia and the additional orders placing restrictions on the obtaining and use of passports was well open to her Honour on the evidence before her. The orders properly predominated the child’s best interests.
[31] Reasons, [16].
The Restraint On The Mother Leaving Australia
Her Honour’s order which prevented the mother from travelling wherever and whenever she chose outside of Australia independently of the child (order 1 of the orders consolidated earlier in these reasons) is obviously a significant interference with the mother’s fundamental rights. The first question which arises is, does the court have power to make such an order?
The Court’s Power to Restrict Movement of a Parent
In Sampson and Hartnett (No 10) (“Sampson”),[32] this Court considered (among other things) the power to restrain a parent from relocating to a place of their choosing or, conversely, the power to require a parent to relocate contrary to their choosing.[33] Citing as authority statements by the High Court in AMS v AIF,[34] and U v U,[35] this Court held:
In our view there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.[36]
[32] (2007) FLC 93-350.
[33] Sampson (above), at [6] and [19].
[34] (1999) 199 CLR 160.
[35] (2002) 211 CLR 238.
[36] Sampson (above), at [33].
The Court went on to examine the foundation for that power, ultimately concluding that it lay in s 114(3) of the Act and not s 68B, and went on to hold that “perhaps obviously in a parenting case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders”.[37]
[37] Reasons, [40].
Important to the instant issues, this Court in Sampson also held that statements by the High Court in AMS (above) “…seem to recognize the rarity of an order crafted outside the proposals of the parties, but not to exclude the possibility of such an order”[38] before concluding that s 114(3) of the Act does give power to “enjoin a parent from relocating or to relocate”. However the power is caveated; the injunction must be “…no more than is necessary to secure the best interests of a child” noting that “[t]he proper exercise of such a power is likely to be rare…”.[39]
[38] Reasons, [48], thereafter quoting from AMS (above) and U and U (above), at [58].
[39] Reasons, [58].
The question here is not confined to whether the mother should be “enjoin[ed] from relocating”, but neither are this Court’s comments, to which we have referred, confined to that specific issue. In Zanda & Zanda[40] this Court was satisfied that the principles discussed in Sampson also applied to injunctions seeking to restrain a parent’s departure from Australia simpliciter. We agree. We consider those same principles are apposite to the instant circumstances.
[40] (2014) FLC 93-607 at [135]
We conclude that her Honour’s order is within power.
The Genesis of the Restraint on the Mother and Her Opportunity to Be Heard
In the proceedings before the Senior Registrar on 12 November 2014, the father (acting for himself) sought an order placing restrictions on the mother’s travel independent of the child. The mother did not appear before the Senior Registrar on that occasion and the proceedings were adjourned for the specific purpose of him considering such an application with the mother having an opportunity to be heard (should she seek the same).
In the event, the mother did appear at the adjourned hearing (on 14 November 2014). There, she heard discussion between counsel for the ICL and the Senior Registrar as to the difficulties attending the making of an order restraining the mother’s movement outside of Australia. While it seems clear that the mother may not have understood the legal nuances involved in the discussion, in her written outline of argument before this Court she refers specifically to what was there said:
It is not true to add an order which is opposed by Senior [Registrar] Campbell … THE REGISTRAR said; … are very, very dangerous … I can’t put her name on watch list without … very legal consideration and assistance from a lawyer”.
Plainly enough, that might not be a verbatim account, but equally plainly it is a reference to an interchange between the Senior Registrar and counsel for the ICL as to limitations on the court’s power to make such an order and the nature of the evidence that might be required to make it.[41] The reference to “very, very dangerous”, for example, can be seen in the passage of the transcript earlier quoted.
[41] Transcript of proceedings, 12 November 2014, pp 9-10.
Subsequent to the mother filing her application to review the orders of the Senior Registrar, the father, then acting for himself, filed an Application in a Case two days before the hearing before her Honour on (Friday) 6 November 2014. That application was, it seems, served on the ICL and the mother at the hearing before her Honour on (Monday) 9 November 2014. The transcript reveals that the application was not on the file and the father handed it up to her Honour who permitted him to rely upon it in the proceedings. In that application, the father sought this order:
To place the mother of the child … on the watch list restraining her from leaving the Commonwealth of Australia and the AFP to be requested to place her on the Airport Watch List and to effect this order until the court orders its removal.
When her Honour addressed the mother at the commencement of the proceedings before her, the mother reiterated her desire to travel with the child to Country C and provided a number of reasons why she suggested that should be permitted to occur. During those statements by the mother, this crucial exchange took place:
[MS GILLES]: This is why I can’t go in [Country C] because … divorce paper ---
HER HONOUR: Well, [Ms Gilles], nothing ---
[MS GILLES]: --- but I need our freedom.
HER HONOUR: --- prevents you from going. You just can’t take your son, but you can go …[42]
(Emphasis added)
[42] Transcript of Proceedings, 9 March 2015, p 10.
A number of other things are said by the mother in support of why she should be permitted to travel to Country C with the child, before her Honour asks whether there is anything further from her and attention moved to the submissions by counsel for the ICL. Nothing is said within those submissions on the question of whether the mother should herself be restrained from leaving Australia.[43]
[43]Counsel told her Honour that on the information to hand, it would be “possible for her to remain in [Country C] indefinitely”. However, that statement is immediately succeeded by reference to the Hague Convention and it is abundantly clear that counsel’s statement just quoted refers to mother and child remaining in Country C indefinitely. (Transcript of proceedings, 9 March 2015, p 12.)
Thereafter, her Honour briefly adjourned and returned to deliver her ex tempore reasons. Those reasons conclude:
18.Having regard to the evidence of the father as to the mother’s ability to remove the child by endorsing his name on her [Country C] passport, the only safe course to adopt in the short term and on an interim basis is to place the mother’s name on the Airport Watch List.
While there is no power to order the AFP to place a parent or child’s name on the Family Law Watchlist, the long-standing co-operative administrative arrangements that see “requests” to that effect being acted upon (and, as a consequence, included in orders) might see them being regarded as separate to an injunction directed to a party. Indeed, the orders ultimately made by her Honour (and the earlier orders of the Senior Registrar which her Honour “confirmed”) make precisely that distinction. Within that context, it should be observed that nothing at all is said within the reasons about the making of an injunctive order against the mother.
The mother was self-represented. English was not her first language. It could not be said that she was a sophisticated person and the record plainly reveals that while she plainly understood what she wanted to achieve in the proceedings and why, the subtleties of what the law might avail her were not understood. Those considerations created an obligation to clarify for the mother the orders sought against her which impacted adversely upon her (and her desires for the child).[44]
[44]As to the issues emanating from the mother’s self-representation, see for example: Re F: Litigants in Person Guidelines (2001) FLC 93-072.
Here, with respect to her Honour, not only did that not occur, but the passage of the transcript which we have earlier quoted could only reasonably have left the mother with the impression that she was not at risk of an order of the very type which her Honour made. That very order was made subsequent to the quoted direct exchange between the mother and her Honour without further reference to the mother and without providing any opportunity for the mother to be heard in respect of a result which her Honour had led the mother to believe would not occur.
In our view, the mother was not accorded procedural fairness.
The Evidence in Support of the Restraint on the Mother
It will be recalled that orders of the type made by her Honour should be considered a “rarity” for the reasons expressed in Sampson. Further, if those rare orders are to be made, “the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders”.[45]
[45] Sampson (above), at [40].
Here, a consideration of whether such a rare order should be made needed to be undertaken by reference to the evidence, but also in light of the other orders which would be made designed to ensure that the risk of the child being taken to Country C by the mother was met. As has been seen, her Honour’s order (order 1) was made additional to a number of other orders that required the mother to:
·Surrender to the Registrar all Country C passports currently held by her relating to the child;
·Surrender to the Registrar of the Family Court of Australia, Sydney, all Country C passports and Australian passports currently held by the her, provided that the father give written consent to the release of the passports in the event she wishes to return to Country C to visit her family without the child;
·Advise the court of any pending application made by her for an Country C passport in the child’s name; and
·Advise the court of any pending application made by her for a Country C Birth Certificate for the child.
In addition, the orders provided that:
· Both parties be restrained either themselves, or through servants or agents, from removing or attempting to remove or causing or permitting the removal of the child from Australia and a request that his name be placed on the Family Law Watchlist in force at all points of arrival and departure in Australia and to maintain the said name on the watch list until the court orders its removal;
· The AFP be requested to confirm to the father the departure from Australia of the mother;
· The mother be restrained from spending time with or taking possession of the child from the commencement of school Monday to the cessation of school Friday each week;
· A copy of the orders be provided to the child’s school and NSW Police and “any other authority to ensure compliance” with the orders.
And, of course, to those orders was added the order made originally by the Senior Registrar on 14 November 2014 (order 11) that “to the extent that it is possible”, the AFP “note the name of” the mother “for the purposes of close scrutiny to ensure that [the child] does not leave Australia”.
The risks, as her Honour correctly perceived them to be, of the child being removed from Australia by the mother had to be balanced against the significant interference with fundamental rights enjoyed by the mother to lawfully travel as and when she might choose if the child did not accompany her.
As we have said, there was sufficient evidence from which her Honour (and, indeed, the Senior Registrar before her) could properly conclude that there was a risk of flight with the child that needed to be addressed by interim orders which sought to prevent the child leaving the country. However, there was no evidence before her Honour that the mother had by subterfuge or unlawful means, sought to circumvent restrictions on her movements with the child. Indeed, the evidence was that the mother had sought to avail herself of court orders so as to permit the child to travel to Country C with her.
The only evidence to which her Honour makes reference as justifying the order made (in addition to the other orders already referred to) is “…the evidence of the father as to the mother’s ability to remove the child by endorsing his name on her [Country C] passport”. In that respect the father’s affidavit filed 17 October 2014 (prepared by solicitors on his behalf) made no mention of any such concern. His subsequent affidavit contained the unparticularised, unsourced hearsay evidence to which we have earlier referred. We reiterate that no details of the conversation were given and that the unparticularised second hand accounts were being given by a person for whom English is not their first language. So, too, we reiterate that doubt was cast upon the assertions by accounts given through a solicitor (that were themselves hearsay and given from the bar table).
There is in our view an insufficient evidentiary foundation for her Honour’s conclusion that an order was required restraining the mother from doing what she was lawfully entitled to do. As a poignant exemplification of the mother’s position under the orders, we were informed (uncontroversially from the bar table) that the child had been in the care of the mother for some considerable time after her Honour’s order while the father travelled overseas. In short, although he too was subject to a restriction on leaving Australia with the child, he himself exercised the very freedom which her Honour’s orders denied to the mother.
Conclusion and Orders
It will be clear from what we have said that we consider that order 1 made by her Honour wreaks a substantial injustice to the mother with the consequence that her application for leave to appeal should be granted.
In respect of that order, we conclude:
·The mother was not afforded procedural fairness in respect of any proposed order that she (as opposed to the child) be restrained from leaving Australia;
·Further and in any event, no such order was reasonably open to her Honour on the evidence before her;
·The appeal against order 1 of the orders earlier set out should be allowed; and
·As a consequence, that order should be set aside together with the notation accompanying it.
The balance of the orders made on 9 March 2015 (as corrected by us by reference to the “slip rule”) were open to her Honour on the evidence before her and we are unable to detect error in respect of them. The mother’s application for leave to appeal those orders should be dismissed.
The substantive orders affecting the parties and the child resulting from the orders just referred to need to be understood by two litigants for whom English is not a first language one of whom is self-represented; they are intended to found airport watch requests, and have the potential to inform actions by border patrol officers and, perhaps other officials or the police.
In light of her Honour’s omissions having been corrected by us pursuant to the slip rule as earlier described we will, for the purposes of clarity, set out in an Annexure to our orders disposing of the appeal, the interim orders currently applicable and direct the Appeals Registrar to seal and issue those orders such that they might then, in that form, be used for the purposes to which they are directed. As an additional aid to clarity and enforcement, we will order that a copy of these reasons be authorised to be distributed to:
(a) The Commissioner, Australian Federal Police and such officers as he might consider appropriate including the Officer in Charge of the Family Law Watch list and officers under his or her command; and
(b) The Director Immigration and Border Protection and any officers whom he or she might authorise including all such officers as might be concerned in the maintenance and enforcement of the Family Law Watch list.
Costs
It cannot be said that the mother has been wholly unsuccessful in this appeal and although she appeals from an interim order, the unusual nature of the orders made and the injustice which in our view resulted to her, and her financial and other circumstances point to there being no circumstance justifying a departure from s 117(1) of the Act.
We will order that each party bear their own costs of and incidental to the appeal.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy and Austin JJ) delivered on 11 February 2016.
Associate:
Date: 11 February 2016
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