Gosai and Gosai
[2020] FamCAFC 176
•23 July 2020
FAMILY COURT OF AUSTRALIA
| GOSAI & GOSAI | [2020] FamCAFC 176 |
| FAMILY LAW – APPEAL – PARENTING – Where the primary judge dismissed the mother’s application for the appointment of an Independent Children’s Lawyer without inviting submissions or giving reasons – Denial of procedural fairness – Where there was a body of objective evidence and evidence the subject of admissions which pointed to violent behaviour by the father – Where the primary judge erred in his consideration of the children’s views – Where the primary judge erred in finding the children had a meaningful relationship with the father – Appeal allowed – Matter remitted for rehearing – Costs certificates granted. |
| Evidence Act 1995 (Cth) s 144 United Nations Convention on the Rights of the Child |
| Acquaah-Akuffo & Abioye (2016) FLC 93-739; [2016] FamCAFC 194 Bondelmonte v Bondelmonte (201) 259 CLR 662; [2017] HCA 8 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352; [2017] FCAFC 107 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253 M v M (1988) 166 CLR 69; [1988] HCA 68 Malek Fahd Islamic School LtdvMinister for Education and Training (No 2) [2017] FCA 1377 McCall & Clarke (2009) FLC 93-405; [2009] FamCAFC 92 Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348 Re K (1994) FLC 92-461; [1994] FamCA 21 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Tibb vSheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 ZP v PS (1994) 181 CLR 639; [1994] HCA 29 |
| APPELLANT: | Ms Gosai |
| RESPONDENT: | Mr Gosai |
| FILE NUMBER: | SYC | 5366 | of | 2018 |
| APPEAL NUMBER: | EAA | 63 | of | 2019 |
| DATE DELIVERED: | 23 July 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Watts & Tree JJ |
| HEARING DATE: | 26 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 July 2019 |
| LOWER COURT MNC: | [2019] FamCA 463 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Coleman SC |
| SOLICITOR FOR THE APPELLANT: | Coleman Greig Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | MST Lawyers |
Orders
The appeal be allowed.
The orders made by the primary judge on 15 July 2019 be set aside.
The proceedings be remitted for rehearing.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gosai & Gosai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 63 of 2019
File Number: SYC 5366 of 2018
| Ms Gosai |
Appellant
And
| Mr Gosai |
Respondent
REASONS FOR JUDGMENT
Aldridge J
I have read the reasons of Watts J and agree that the appeal must be allowed. I address my comments to the grounds of appeal concerning the primary judge’s findings as to the views of the children and the meaningful relationship between the children and the father (Grounds 5, 6, 7(b) and 7(e)) and make some comments about Ground 1.
Did the primary judge err by failing to make an order appointing an Independent Children’s Lawyer or by failing to have proper regard to the views of the children? (Grounds 5 and 6)
The primary judge clearly had regard to the views of the children, although it is plain that they were given little weight. His Honour gave two reasons for doing so: there was no independent evidence as to the children’s views and after spending approximately two years with only the mother “it [was] hardly surprising that the children’s views coincide[d] with the views of their mother” (at [53]).
The mother’s evidence as to the children’s views was unchallenged – there was no evidence to the contrary and the mother was not cross-examined. There was therefore no occasion to suspect that the mother was not accurately reporting what the children told her.
If they were, in fact, the children’s views, they would remain the same even when reported through independent means such as an Independent Children’s Lawyer or a report writer.
The comment made by his Honour at [53] however suggests that the children’s views may not have been reported accurately by the mother and would have been different if they had been reported by independent means. The criticism is therefore not one as to the weight to be given to the children’s views, but rather to the weight to be given to the mother’s evidence about them, which was not challenged.
This approach was compounded by the primary judge’s pre-emptive dismissal of the mother’s application for the appointment of an Independent Children’s Lawyer. As Watts J explains below, this was an obvious case for the appointment of a lawyer to represent the interests of the children and for their voices to be heard through that lawyer. The effect of the dismissal of the mother’s application meant that there was no independent evidence of the children’s views before the Court as there was no family report or similar expert evidence. Even so, the lack of independent evidence as to the children’s views obviously concerned the primary judge. The mother, who was acting for herself, was therefore put in an impossible position because she could only call in aid her own evidence as to the children’s views, which was discounted because it was not independent and her efforts to obtain, amongst other things, such evidence, were dismissed.
I therefore agree that Ground 6 has been established because, in the circumstances of this case, the failure to appoint an Independent Children’s Lawyer led to a critical gap in the evidence in a way that was unfair to the mother. On balance, I also consider that Ground 5 has been established because the weight given to the children’s views was unfairly diminished by the above circumstances.
Was the finding that the children had a meaningful relationship with the father open on the evidence? (Ground 7(b) and (e))
The primary judge found that there was “no objective evidence which would indicate that prior to their removal from India by their mother the children had other than a good relationship with their father, as he asserts” (at [55]).
His Honour did not identify what he meant by objective evidence but a reasonable person’s interpretation would be to suggest that this was intended to be a reference to evidence from sources other than the parties themselves.
Earlier, the primary judge referred to the mother approaching the New Zealand High Commission in August 2010, complaining that she was physically abused and tortured by the father. A further complaint along similar lines was made on 24 November 2010, and shortly after, the New Zealand High Commission assisted the mother and the children to return to New Zealand.
In August 2011, the parties reconciled and resumed life together in India.
The family was on holiday in the United States of America in July 2012 when one of the children fell. Shortly thereafter, the family travelled to Europe where the child was diagnosed with a fractured arm. The mother’s evidence was that, enraged by the events, the father hit her at least 20 times in the face. A medical report tendered by the mother indicated that an x-ray taken about a month after the holiday showed a fracture line in the mother’s jaw.
In March 2014, the mother said that the father was “verbally and emotionally abusive” to her, resulting in police attendance at the parties’ home (at [17]). A similar incident in July 2014 saw the father being held in custody overnight. This happened again in August 2016.
On 1 November 2016, the mother lodged a formal complaint about the father with the Special Police Unit for Women and Children in City A which laid a first information report against the father on 9 May 2017.
The mother commenced domestic violence proceedings in City A in November or December 2016. Ex parte orders were made in December 2016 requiring the father to vacate the matrimonial home and restraining the father from forcibly taking the children from the mother’s care. Those orders remained in place after an appeal from them was determined on 18 February 2017.
This brief summary is illustrative only and does not do justice to the mother’s detailed recitation of the persistent and severe family violence which she says was inflicted on her by the father. Her graphic evidence is supported by photographs, medical reports and detailed complaints to authorities in India.
The mother also asserted that many of these events had taken place in front of the children and that, at times, the father had verbally assaulted and denigrated the children themselves.
Tellingly, the father’s evidence as to this violence was:
[The mother] has made many allegations and reports of domestic violence in India which have been strongly denied by me. I contend many of her allegations are false and some are greatly exaggerated and that she has relied upon falsified documents in support of her allegations…
(Affidavit of the father filed on 23 August 2018, paragraph 54) (Emphasis added)
It follows inevitably that the father accepts that some of the mother’s allegations are correctly described. Thus, the issue could only be as to the nature and extent of the family violence admitted by the father.
The primary judge found:
72.But in my view there is also some support for the father having been aggressive from a letter dated 19 January 2017 addressed to the father from the Director of the children’s school in [City A] at the time. After noting the orders of 20 December 2016 including the restraints, the letter informed the father that as a parent of children at the school he was expected to follow the school’s “Code of Conduct for Parents and Guardians”. The letter went on to note that “Your anger and aggressive tenor in the phone calls to various members of The [D] School (“[D School]”) staff on January 10th (12:30 pm), 12th (3:30 pm) and 13th (8:30 am and 9:15 am), is against the spirit of the [D School] Code of Conduct for Parents and Guardians”. In my view, this material provides some objective support for the mother’s assertions about the father’s aggressiveness and propensity for violence.
There is therefore a body of objective evidence and evidence the subject of admissions which points to violent behaviour by the father. In that light, the mother’s evidence that the children consider the father to be scary, and that they are unsafe with him and do not want to live with him, is unsurprising.
The father asserted that the children had a close and loving relationship with him.
At [62] of the primary judge’s reasons for judgment, his Honour said that if the children were returned to India they “would be at risk of losing what appears to have been the good relationships which they previously had with their father”. However, it is not said what the evidence was that supported such a finding or why the relationship between the children and the father had that appearance. It may have been that the primary judge accepted the father’s assertions to that effect, even though they suffered from the same lack of independence as the mother’s assertions, but unlike the mother’s assertions, they were not supported by the other facts before the Court.
This assertion by the father is noted again by the primary judge at [80] and at [83] where his Honour said that “[a]ssuming that the father did have a close and loving relationship with the children”, that relationship had been interrupted when the mother brought the children to Australia in 2017.
Yet at [84], the father’s assertion and the assumption are found to be fact. Thus, a finding was made that “depriving the children of a relationship with their father could have serious longer term emotional and psychological consequences for them” (at [87]).
It is an error in the exercise of discretion for the primary judge to mistake the facts or fail to take into account some material consideration (House v The King (1936) 55 CLR 499 (“House v The King”)). The evidence of family violence bore directly upon the findings as to the views of the children and informed the findings as to the existence of a meaningful relationship between the children and the father, yet it was not considered. This is sufficient to establish error despite the protestations of senior counsel for the mother that he was not relying on an error of the kind described in House v The King.
I therefore agree that these grounds of appeal also succeed.
Ground 1
Counsel for the mother did however place great weight on what he submitted was the primary judge’s failure to give proper, genuine and realistic consideration to the best interests of the children or the provisions of s 60CC of the Family Law Act 1975 (Cth) (“the Act”) as raised in Ground 1. That such consideration must be given was made clear in (Bondelmonte v Bondelmonte (2016) 259 CLR 662 (“Bondelmonte”). However, the High Court said that the failure to give proper, genuine and realistic consideration to a necessary issue was an error of the kind referred to in House v The King and “[i]t is only an error of this kind which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the [Act]” (Bondelmonte at [31]).
Care needs to be taken to qualify the requirement for such consideration by asserting that the process requires an engagement “in an active intellectual process directed at that claim or criteria” (Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [44]–[45]), or that just because a matter has been “touched upon” it does not necessarily mean that it has been considered (Malek Fahd Islamic School LtdvMinister for Education and Training (No 2) [2017] FCA 1377 at [47]–[48]). Such notions of administrative law do not always translate easily to appeals from judicial determinations (see the reasons of Basten JA with Beazley JA agreeing in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [9]).
Here, the primary judge considered the issue of the relationship between the children and the father, along with the other relevant matters raised by s 60CC of the Act, as the reasons make abundantly clear. There is no reason to think that the consideration was not proper, genuine and realistic. Indeed, the fact that a judge includes a discussion on an issue in his or her reasons for judgment suggests that such a consideration was given to that matter. The consideration in this matter however, was erroneous, as not all the relevant matters were taken into account and the facts were mistaken.
Conclusion and Costs
I agree with the orders proposed by Watts J and with his Honour’s reasons for the costs orders.
Watts J
Introduction
By Notice of Appeal filed 24 July 2019, Ms Gosai (“the mother”) challenges a summary order made by the primary judge on 15 July 2019 that the parties’ two children, who were then 15 and nearly 13 years old, return to India.
The mother had asked the primary judge to appoint an Independent Children’s Lawyer (“ICL”) and complains that the primary judge dismissed that application without inviting submissions or providing reasons. Given findings made by the primary judge about the children’s views, the question is whether these asserted failures strike at the validity and acceptability of the trial and its outcome. Other discrete grounds of appeal complain that: the primary judge did not give proper, genuine and realistic consideration to the nature of the children’s relationship with their father; the benefit of the children having a meaningful relationship with their father; and the primary judge’s consideration of family violence.
For reasons which follow, the appeal shall be allowed.
Background
The mother and Mr Gosai (“the father”) commenced their relationship in approximately 1996 and were married in 2002 in India. The parties thereafter moved to New Zealand, where both the children were born and then subsequently returned to India to live.
The primary judge at [20]–[40] of the reasons for judgment set out the history of the court proceedings in India, both before and after the mother left India with the children.
In November or December 2016, whilst still in India, the mother commenced domestic violence proceedings against the father and ex parte orders were made that the father vacate the former matrimonial home; he be restrained from forcibly taking the children from the mother; and the mother have interim custody of the children.
The parties separated on a final basis on 20 December 2016. The last occasion the children had any contact with the father was in January 2017.
In February 2017, the appellate court in City A set aside the interim custody order but not the other ex-parte orders. On 14 July 2017, the father commenced in the Family Court in City B, an application for orders seeking sole care of the children and that the mother not remove the children from India. On 14 August 2017, the mother was served with a summons to attend court on 30 August 2017.
On 24 August 2017, and before the application by the father to restrain her from doing so was determined in India, the mother removed the children from India to Australia without the father’s knowledge or consent. The children have lived in Australia since that time.
The father continued to prosecute proceedings in the Indian courts but did not initiate any action in Australia until 23 August 2018, when he filed an Initiating Application in this Court, seeking a summary order for the return of the children to India. There was no suggestion that a repatriation order would involve separating the children from the mother. That application, first came before the primary judge on 24 September 2018, at which time the primary judge ordered the mother to file a Response by 30 November 2018 and set the matter down for hearing on 16 January 2019. The mother was assisted by a duty solicitor on that first day but did not make an application for the appointment of an ICL, nor did the primary judge make any such order on his own motion.
On 28 November 2018, the mother filed a Response opposing the order for summary return and amongst other things, seeking an order for the appointment of an ICL pursuant to s 68L of the Family Law Act 1975 (Cth) (“the Act”).
The father’s application for a summary repatriation order relied upon the Court’s welfare power (s 67ZC(1) of the Act) and in deciding whether or not to make such an order, the Court must regard the best interests of the children as the paramount consideration (s 67ZC(2) of the Act). Sections 60CC(2), 60CC(2A) and 60CC(3) of the Act set out the matters which the Court must consider (s 60CC(1) of the Act). The doctrine of forum non conveniens has no direct application (ZP v PS (1994) 181 CLR 639 at 647), although similar considerations may be relevant under s 60CC(3)(m) of the Act.
The hearing before the primary judge on 16 January 2019 proceeded on the basis of the affidavits and other documents relied upon by each of the parties without that evidence being tested. The primary judge reserved his decision and as indicated, made an order on 15 July 2019 that the children return to India. The primary judge, in the reasons for judgment, discussed each consideration in s 60CC(2) and s 60CC(3) of the Act seriatim.
Grounds of Appeal
Grounds 4 and 8 were abandoned.
Grounds 5, 6 and 7(a) – the views of the children and the failure to appoint an ICL
Grounds 5, 6 and 7(a) are in the following terms:
5.The primary judge erred in principle by failing to have any, or any proper regard to the wishes of the children the subject of the proceedings, contrary to the requirements of s 60CC(3)(a) of the Family Law Act 1975 (Cth) and Article 12 of the United Nations Convention on the Rights of the Child.
6.…the primary judge erred in principle by failing to order that the children the subject of the proceedings be represented, and failing to order the preparation of an expert report with respect to the wishes of the children, and any other matters relevant to their best interests.
7.The primary judge’s evaluation of the best interests of the children the subject of the proceedings was vitiated by reliance upon assumption or inferences for which there was no, or no adequate evidentiary foundation, including:
a.discounting the weight to be given to the children’s wishes because they had not seen the [father] for two years.
…
I deal with these grounds of appeal first, as it became apparent during oral argument in relation to Ground 6, that the interim application made by the mother pursuant to s 68L of the Act was dismissed by the primary judge without argument or reasons. In order to understand the significance of the fate of this application, it is convenient to first discuss Grounds 5 and 7(a).
Section 60CC(3)(a) of the Act required the primary judge to consider any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks relevant to the weight it should give to the children’s views.
The only evidence before the primary judge relevant to the children’s expressed views was the unchallenged evidence of the mother. At [52] and [53] of the reasons for judgment, the primary judge states:
52.The mother said that the children do not wish to spend any time with their father or have anything to do with him. She said that on or about 10 October 2018 she asked them whether they wished to speak with their father. She said the children’s responses were as follows:
Why would we meet him? He is scary. We don’t want to see him, we have nothing to do with him. He is very scary, why won’t anyone listen to us. Can they force us to see him or live with him when we don’t want to? Why would we meet him he is so scary and unsafe.
53.The children are 15 years and 12 years of age respectively. The views of children of these ages would usually be afforded some weight. But there is no independent evidence about the children’s views. They have not spent any time with their father for approximately two years. In these circumstances it is hardly surprising that the children’s views coincide with the views of their mother. These factors, in my view, reduce the weight which the Court would otherwise place on the children’s views.
(Emphasis added)
The primary judge plainly has considered the express views of the children as reported by the mother and the weight to be given to those views, given the limited evidence that the primary judge had before him.
The High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”) at [43] made it clear that s 60CC(3)(a) of the Act, “whether or not read in conjunction with other provisions of Pt VII, neither expressly nor impliedly requires the court to seek the views of a child”, but rather “requires the views which have been ‘expressed’ by a child be considered”.
The gravamen of the mother’s complaint is that the primary judge found “there is no independent evidence about the children’s views” (at [53]):
·the primary judge did not consider her application for the appointment of an ICL (s 68L of the Act);
·had the primary judge considered the application, it would have been apparent to the Court that the children’s interests in the proceeding ought to have been independently represented a lawyer; and
·had an ICL been appointed, the opportunity would have arisen for the primary judge to be provided with independent evidence of the children’s views.
On 23 October 2018, the mother had written to the father’s lawyers requesting the father’s consent to an order for the appointment of an ICL. On 29 October 2018, the father’s lawyers replied indicating the father did not consent to the appointment of an ICL. As indicated above, on 28 November 2018, the mother filed a Response which, amongst other things, sought an interim order pursuant to s 68L of the Act; that an ICL be appointed to represent the children; and reiterated that application in her supporting affidavit.
The application for the appointment of an ICL was made returnable on the same day that the matter was listed for the hearing of the father’s summary return application, namely, 16 January 2019.
At the hearing before the primary judge on 16 January 2019, counsel for the father alerted the primary judge to the mother’s interim application for the appointment of an ICL:
The mother in this case seeks an appointment of an independent children’s lawyer and, in my submission, that would not be necessary. Assuming that the children’s views are those which the mother seems to express, although she doesn’t quote them – she refers to them as being the fact that they don’t wish to return to India and she says that at paragraph 13 of her affidavit, and 12, paragraph 12 of the affidavit, that the children are expressing very strong views in relation to not having any time or contact with … the applicant father. She then says:
The children have not seen [the father] for two years and they do not wish to see [the father]. I seek that an independent children’s lawyer be appointed as a matter of urgent –
think that should be “urgency” –
to represent the interests of the children –
and indicates that the father doesn’t consent to that application. And assuming, for present purposes, that the views of the children are, in fact, as said by the mother, that would not be surprising since the children have been with her since she had brought them to Australia in August – on 24 August 2017…
(Transcript 16 January 2019, p.16 lines 6–25) (As per the original)
During final submissions, the mother, who was unrepresented, said to the primary judge:
So in regards to that I would request you to please appoint, you know, independent child lawyer so that they’re – you know, the best interest can be verified and can be checked by the court and a right decision is made...
(Transcript 16 January 2019, p.32 lines 12-14) (As per the original)
It is consequently clear that the mother in her Response filed on 28 November 2018, her affidavit in support of the Response and orally on 16 January 2019, sought an order for the appointment of an ICL.
In addition, the mother was an unrepresented litigant. The primary judge did not:
·identify the mother’s application for an order under s 68L of the Act;
·draw the mother’s attention to the relevant Re K (1994) FLC 92-461 (“Re K”) guidelines, discussed below; and
·invite the mother to make submissions about her application.
(See Re F: Litigants in person guidelines (2001) FLC 93-072 at [253]).
At [4] and [5] and Annexure “B” to the reasons for judgment, the primary judge set out the final orders sought by the mother. His Honour does not record that the mother had made an application for the appointment of an ICL in the part of the Response in which the mother set out the interim orders sought by her. Order 5 made by the primary judge on 15 July 2019, dismissed the whole of the mother’s Response filed on 28 November 2018, which included dismissal of the mother’s interim s 68L application. It is not controversial that the primary judge had not referred to the mother’s application for the appointment of an ICL in the reasons for judgment nor made any reference to it during the proceedings.
Senior counsel for the mother submits that the failure to order representation of the children’s interests, particularly in light of the primary judge’s finding that there is no independent evidence about their views, was erroneous in principle and a denial of natural justice to the children.
Section 60B(4) of the Act sets out, as one of the objects of Pt VII of the Act, the following:
An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Relevantly, Art 12 of the United Nations Convention on the Rights of the Child (“the Convention”) is in the following terms:
1.States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of nation law.
The provisions of paragraph 1 of Art 12 have been incorporated into Australian domestic law (s 60CC(3)(a) of the Act). Importantly, in respect of this challenge by the mother, the provisions of paragraph 2 of Art 12 of the Convention have been addressed primarily in s 68L of the Act, although as the High Court pointed out in Bondelmonte at [47], the ICL represents the child’s interests and “the ICL is not the child’s legal representative, and is not … obliged to act on the child’s instructions”.
Section 68L(2) of the Act is in the following terms:
If it appears to the court that the child’s interests in the proceedings ought to be independently represented by a lawyer, the court:
(a)may order that the child’s interests in the proceedings are to be independently represented by a lawyer; and
(b)may make such other orders as it considers necessary to secure that independent representation of the child’s interests.
(Emphasis added)
Senior counsel for the mother argues that s 68L(2) of the Act is a remedial provision and as such, is entitled to a liberal or beneficial interpretation in accordance with the principals of statutory interpretation. Whilst it was acknowledged that s 68L reposed a discretion to order separate representation, it was submitted that the basis upon which that discretion was enlivened was in circumstances where the children’s interests in the proceedings “ought to be independently represented by a lawyer”. It was submitted that those words evince a statutory intention that, once the need is found, there is a presumption in favour of making an order under the section which can only be rebutted on sound grounds.
I do not accept that s 68L(2) creates any presumption. The words “[i]f it appears to the court” and “the court may make an order” create a wide discretion. The Full Court in Re K at 80,773, set out guidelines as to when appointments should be made which relevantly include:
...
ii)Cases where there is an apparently intractable conflict between the parents.
…
iii)Cases where the child is apparently alienated from one or both parents.
…
ix)Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent.
x)When one of the parents proposes that the children will… be permanently removed from the jurisdiction;
…
xiii)Applications in the courts welfare jurisdiction…
It is apparent that the evidence in this case satisfied each of these criteria, which at least collectively, formed a strong basis for the mother’s application that an order be made that the children’s interests in the proceedings be independently represented by a lawyer.
Had an ICL been appointed, s 68LA of the Act provides:
(7)The independent children’s lawyer may disclose to the court any information that the child communicates to the independent children’s lawyer if the independent children’s lawyer considers the disclosure to be in the best interests of the child.
(8)Subsection (7) applies even if the disclosure is made against the wishes of the child.
These provisions are subject to s 68LA(6) of the Act which makes it clear that the ICL is not under any obligation and cannot be required to disclose information communicated to the ICL by the child. However, information once disclosed by the ICL, may potentially be received as part of the evidence (see s 69ZT(1) and s 69ZV(2) of the Act).
The complaint in this case is that having dismissed the mother’s application for the appointment of an ICL and eliminated the opportunity to hear from the ICL about information that the children had communicated to the ICL, the primary judge went on to find (at [53]) that there was no independent evidence about the children’s views, which finding played into the conclusion that a reduced weight should be placed upon the views of the children as expressed in the passage set out by the primary judge (at [52]).
Senior counsel for the mother submits that the ages of the children the subject of the present proceedings, their reported wishes and the primary judge’s reservations, combine to oblige the primary judge to have made an order pursuant to s 68L of the Act before determining the proceedings.
Counsel for the father submits that it would be unlikely that the appointment of an ICL would have changed anything. It was submitted that an assumption could be made that the ICL would have reported the children’s views in similar terms to those set out in [52] of the reasons for judgment and would not have changed the circumstances that the children had not spent any time with the father for approximately two years, which led the primary judge to conclude that it was hardly surprising that the children’s views coincided with the views of the mother and that reduced weight should be placed upon the expressed views of the children.
The father also relies upon Acquaah-Akuffo & Abioye (2016) FLC 93-739, where the Full Court at [23], in a case involving an appeal against a summary return order, discussed the primary judge’s refusal to grant an application for the appointment of an ICL. Ultimately, in the facts of that case, the Full Court commented at [73] that the primary judge concluded that it was in the child’s best interest to make the order “without any further delay which would inevitably be the result of the appointment of an [ICL] and the commissioning of a report”. In this case, however, the primary judge simply did not actively entertain the application at all. The mother was denied procedural fairness.
I could not conclude that this omission by the primary judge had no material consequence as the appointment of the ICL may well have affected the primary judge’s findings that there was no independent evidence about the children’s views and that those views should be given reduced weight (Stead v State Government Insurance Commission (1986) 161 CLR 141). Further information provided by the children to the ICL about their relationship with the father and whether it was relevant to the issue of family violence, may well have affected the outcome.
Consequently, the first complaint in Ground 6, namely, that the primary judge erred by failing to consider the mother’s application for the appointment of an ICL and/or failed to make an order when it ought to have been made, has merit.
There is ultimately merit in the other parts of Grounds 5, 6 and 7(a) because of the impact the denial of procedural fairness had on the findings made about the views of the children and the weight to be placed upon them.
Other Grounds of Appeal
My conclusion about the first complaint in Ground 6 is sufficient to dispose of this appeal. However, senior counsel for the mother referred to the other grounds of appeal in the oral submissions as “big ticket items” and I consider it appropriate to deal with them. These principally focused on the primary judge’s reasons relating to:
·the nature of children’s relationship with the father (s 60CC(3)(b) of the Act) and the benefit to the children of them having a meaningful relationship with the father (s 60CC(2)(a) of the Act); and
·the need to protect the children from physical or psychological harm from being subjected or exposed to family violence (s 60CC(2)(b) of the Act) and any family violence involving the mother or the children (s 60CC(3)(j) of the Act).
Senior counsel for the mother made clear that the mother’s complaint was that the primary judge had failed to give proper, genuine and realistic consideration to these matters before deciding to make an order to summarily repatriate the children to India.
The High Court in Bondelmonte, when discussing the first additional consideration, said at [43]:
Section 60CC(3)(a) … requires that the views which have been “expressed” by a child be considered. The term “consider” imports an obligation to give proper, genuine and realistic consideration...
(Footnote omitted)
The Full Court in the subsequent decisions of Tibb vSheean (2018) 58 Fam LR 351 at [75]–[88] and Lovett &McGregor (2019) FLC 93-935 at [68]–[72] discussed this statement made by the High Court. I proceed on the basis that the primary judge was required to give proper, genuine and realistic consideration to the relevant matters under s 60CC(2) and s 60CC(3) of the Act.
The return order made by the primary judge is an order made in the exercise of judicial discretion under the Act. It involved an overall assessment of the considerations prescribed by the Act.
In Bondelmonte the High Court said:
31.The submissions of the father implicitly accept, as they should, that the question for the Full Court of the Family Court was whether the father had identified an error in the reasoning of the primary judge of the kind referred to in House v The King. It is only an error of this kind which will permit an appellate court to interfere with parenting orders made by a primary judge under s 65D of the Family Law Act. It is well recognised that orders made in the exercise of a judicial discretion under the Family Law Act, including orders as to the alteration of property interests, orders as to custody and parenting orders, can be set aside only on a strictly limited basis, in accordance with House v The King.
32.A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
(Footnotes omitted) (Emphasis added)
Whilst Bondelmonte was discussing the power under s 65D of the Act, in my view, the same statements apply to exercising power under s 67ZC(1), given the provision of s 67ZC(2).
In House v The King (1936) 55 CLR 499 (“House v The King”), Dixon, Evatt and McTiernan JJ said at 504–505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
(Emphasis added)
Grounds 1 and 2 – family violence
The second primary consideration required the primary judge to consider the need to protect the children from physical and psychological harm from being subject to, or exposed to, abuse, neglect or family violence. The primary judge acknowledged at [49] that pursuant to s 60CC(2A) of the Act, in applying the considerations in s 60CC(2) of the Act, s 60CC(2)(b) of the Act is to be given greater weight.
Section 60CC(3)(j) of the Act requires the primary judge to consider any family violence involving the parents and the children.
Grounds 1 and 2 are as follows:
1.The primary judge erred in principle by failing to give proper, genuine and realistic consideration to the risk that the children the subject of the proceedings would be exposed to family violence if they were repatriated to India, which was a mandatory relevant consideration.
2.The primary judge erred in principle in circumstances where, having, correctly, identified the need for examination in considerable detail of the [mother’s] claim that the [father] was so violent and abusive that it would not be in the children’s interests to have a relationship with the [father], identified that findings and orders of the court in India raised serious questions about the [father’s] parenting capacity, and identified that it was troubling that Indian courts had made protective orders against the [father], his Honour failed to undertake any, or any adequate examination of those issues.
Whilst the mother did not formally abandon Ground 1, senior counsel for the mother made it plain that it was not the mother’s case that the evidence about family violence was sufficient for the primary judge to conclude that repatriation of the children to India would expose them to the risk of family violence.
Accordingly, Ground 1 cannot succeed.
The mother’s case is that the uncontroversial evidence about family violence in the context of serious allegations made by the mother was sufficient to require a full testing of the evidence about family violence and accordingly, the primary judge failed to give proper, genuine and realistic consideration to that evidence and that an order for summary return should not have been made.
The mother set out in her evidence (including graphic photographic and some medical evidence) her assertion that she had been the victim of very serious family violence. The father at paragraph 54 of his affidavit filed on 23 August 2018 contended that “many of her allegations were false and some were greatly exaggerated”. At [87] of the reasons for judgment, the primary judge found that the father “while acknowledging some level of violence, asserts that the mother has greatly exaggerated the father’s alleged abusive behaviour”.
His Honour, however, based on the uncontested material, made a number of findings relevant to a consideration of family violence:
·on 5 August 2010, the mother approached the New Zealand High Commission, claiming that she was experiencing physical abuse and torture perpetrated by the father (at [12]);
·on 24 November 2010, the mother again complained to the New Zealand High Commission, following an alleged incident between herself and the father (at [13]);
·in November 2010, the mother and the children left India for New Zealand, using travel documents provided by the New Zealand High Commission, and then moved to Australia (at [14]);
·between November 2010 and August 2011, the father apologised to the mother for his abusive behaviour (at [15]);
·in July 2014, the father was arrested and placed in custody overnight in India after the mother alleged that he had been physically violent to her (at [17]);
·on 6 August 2016, the father was again arrested and detained following an attack upon the mother (at [18]);
·on 1 November 2016, the mother made a complaint of domestic violence to the Special Police Unit for Woman and Children in City A and a First Information Report was lodged against the father by the Special Police Unit on 9 May 2017 (at [19]); and
·on 20 December 2016, the City A Courts in India recorded that there was “sufficient material on record to show domestic violence have (sic) been taken place and that prima facie the [father] has been committing physical violence/abuse and causing harm to the [mother] and his (sic) causing verbal and emotional abuse to the children” (at [20]), and ordered that the father vacate the matrimonial home and be restrained from forcibly taking the children from mother’s care pending the next listed hearing (at [21]).
At [64], the primary judge, when considering the parenting capacity of the father, concluded:
In relation to the father’s capacity to provide for the children’s needs the fact that the Indian courts have made, and confirmed, orders against the father for the protection of the mother raises serious questions about his parenting capacity.
The primary judge acknowledged that the mother makes “very serious allegations of family violence” (at [69]). His Honour does not detail these allegations but describes them as “a long history of serious verbal, physical and psychological abuse perpetrated by the father against her. She also alleges much of this abusive behaviour has occurred in the presence or hearing of the children and that they have been adversely affected by it” (at [85]). The primary judge found that the mother’s allegations about violence were “worrying” (at [88]). Further, the primary judge found that there was some support for the mother’s allegations in objective material filed by her (at [70]–[72]) and acknowledged on three separate occasions, that the allegations of family violence needed to be examined in detail in a full inquiry (at [63], [74] and [88]).
There was no objective basis to accept the father’s assertions that the mother had exaggerated her allegations and the primary judge did not do so. The primary judge correctly identified the need for a full inquiry into the mother’s allegations of family violence but chose, by the order that his Honour made, not to conduct one prior to making the repatriation order. Given the findings which were relevant to family violence that the primary judge did make and the primary judge’s identification of the seriousness of the mother’s allegations, it is not apparent how the primary judge reached the conclusion that it was in the children’s best interests to make a summary repatriation order, without conducting an inquiry into that evidence.
Accordingly, there is merit in Ground 2.
Grounds 7(b) and 7(e) – the children’s relationship with the father and the benefit of the children having a meaningful relationship with the father
As the primary judge recorded, s 60CC(2)(a) of the Act requires the Court to consider, as one of the two primary considerations, the benefit to the children of having a meaningful relationship with the father and the children’s relationship with the father (s 60CC(3)(b) of the Act).
Grounds 7(b) and (e) are in the following terms:
7.The primary judge’s evaluation of the best interests of the children the subject of the proceedings was vitiated by reliance upon assumption or inferences for which there was no, or no adequate evidentiary foundation, including:
…
b.assuming that, prior to August 2017, the children had other than a good relationship with the [father];
…
e.assuming that, prior to August 2017, the children had good relationships with the [father].
Counsel for the father referred to the following general statement by the High Court in M v M (1988) 166 CLR 69 at [20]:
… In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents…
(References omitted)
Senior counsel for the mother conceded it is reasonable to infer, other things being equal, that a child would benefit from having a meaningful relationship with a parent but submits in this case that there is a complete absence of objective evidence and inferences cannot be permissibly drawn in the circumstances.
The words “benefit” and “meaningful” in s 60CC(2)(a) of the Act require attention to be given to the circumstances arising in a particular case. The Full Court in McCall & Clarke (2009) FLC 93-405 at [120], expressly rejected the interpretation that the legislative intent of s 60CC(2)(a) was to create an assumption that there is benefit to all children in having a meaningful relationship with both of their parents. Whilst the Full Court at [119] acknowledged that s 60CC(3)(b) of the Act requires an exploration of the existing relationship between child and parent, the Full Court said:
… the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant…
I accept in this case that the benefit of a meaningful relationship involves an assessment of the current relationship between the father and the children and a prospective consideration of the future benefit to the children of a meaningful relationship with the father.
The children lived in the same household as the father from the time they were born until December 2016, apart from a period of about nine months when the parties were separated in 2010/2011, after the mother alleged that she had been seriously assaulted by the father in the presence of the children, sustaining a fractured jaw. The children were 12 and 10 years of age at the date of the separation.
As already noted, the parties separated in December 2016 and the children had had no contact with the father since January 2017.
At [80] of the reasons for judgment, the primary judge records:
Returning to the primary considerations, the father asserts that prior to the removal of the children from India, he had a very close and loving relationship with the children.
At paragraph 10 of his affidavit filed on 23 August 2018, the father says that he and the mother “separated finally on 20 December 2016”. At paragraph 14 of his affidavit filed on 23 August 2018, the father says:
I have not seen or communicated with the children since their abduction from India (and indeed prior to their abduction), in the circumstances described below. This has been devastating for me and I expect also distressing for the children, given we shared a very close and loving relationship before [the mother] and I separated.
(Emphasis added)
The primary judge correctly records at [81] that the mother took issue with the father’s assertion:
The mother takes issue with this saying that before the parties separated, such was the level of the father’s violence that the home environment had become increasingly hostile and unsafe for the children.
The primary judge acknowledged that the mother also gave evidence (referred to above) that the children did not want to see the father and viewed him as “scary and unsafe” (at [52]).
The mother complains that the primary judge made impermissibly sanguine findings and conclusions in respect of the relationship between the children and the father and made a number of assumptions and developed a number of hypotheses, which were ultimately expressed as findings, about the benefit of the children having a meaningful relationship with the father. The mother submits that the findings were utterly unsupported by and contra-indicated by, the objective evidence.
The objective facts that are indirectly relevant to the nature of the children’s earlier relationship with the father were limited but included:
·The agreed fact that prior to the children leaving India, they had not had a relationship with the father for seven months;
·A letter dated 19 January 2017 from the children’s previous school in India to the father stating “Your anger and aggressive tenor in the phone calls to various members [of the D school] on January 10th (12:30 pm), 12th (3:30 pm) and 13th (8:30 am and 9:15 am), is against the spirt of the [D school’s code]” (Exhibit “[M]8” to the mother’s affidavit filed 28 November 2018);
·Orders made by Indian Courts for the protection of the mother from the father; and
·An email dated 29 November 2010 in which the father said to the mother, “As for the [children], you can take both of them if you want. I realize I don’t miss them as much as I thought I would, so it is pretty fine by me” (Exhibit “[M]3” to the mother’s affidavit filed on 28 November 2018). Senior counsel for the mother referred to this as an admission, albeit in November 2010, concerning the nature of the relationship between the father and the children.
Ultimately, however, in [55] of the reasons for judgment, the primary judge said:
… There is no objective evidence which would indicate that prior to their removal from India by their mother the children had other than a good relationship with their father, as he asserts.
I accept the submission made by senior counsel for the mother that no finding of a good relationship can arise from the lack of objective evidence that the relationship was not good.
At [62], the primary judge said in respect of the practical difficulty of the father being in India and the children not returning to India:
… The inevitable consequence would appear to be that the children would be at risk of losing what appears to have been the good relationships which they previously had with their father.
Again, the finding of the appearance of the previous good relationship between the father and the children does not arise from any objective evidence.
Later the primary judge says:
82.I would consider it to be to the children’s benefit to be able to have a meaningful relationship not only with their mother but also with their father, provided that spending time with the father did not compromise their safety.
83.Assuming that the father did have a close and loving relationship with the children, clearly this has been interrupted because the children have been living in Australia for almost two years without having spent time with their father. He has not spoken to the children since January 2017.
84.It would appear to be a very serious matter for these children to be deprived of having a meaningful relationship with their father. As indicated above, they appear to have had close relationships with the father prior to separation.
(Emphasis added)
His Honour’s assumptions that the children “did have a close and loving relationship” with the father but that this had “been interrupted” and findings that “they appear to have had close relationships with the father” does not arise from the evidence.
The primary judge then goes further at [87] and says:
… In any event, one would be concerned that depriving the children of a relationship with their father could have serious longer term emotional and psychological consequences for them.
This finding by the primary judge was unsupported by any expert evidence. The operation of s 144(1)(a) of the Evidence Act 1995 (Cth) is not attracted. The objective evidence did not support the primary judge’s concern.
At [90] the primary judge concludes that “one would expect it to be in the best interests of these children to be able to have a meaningful relationship with their father”.
It was not open to the primary judge to rely upon his own expectation as opposed to any finding that was available on the objective evidence.
Importantly, the primary judge did not find that the summary repatriation order would create an opportunity for the children to obtain the benefit of developing a meaningful relationship with the father. His Honour impermissibly assumed that what would be created was an opportunity for the children to continue a meaningful relationship which had been interrupted by the mother’s removal of the children from India. The existence of that meaningful relationship was not established by the objective evidence.
I conclude that, given the limitations of the evidence before his Honour, the primary judge relied upon assumptions and inferences about the prior relationship that the children had with the father and the benefit of meaningfully maintaining that relationship with the father for which there was no or no adequate, objective evidentiary foundation.
Senior counsel for the mother explicitly disavowed relying on any House v The King error but I have concluded that such error exists. Looking at the evidence overall and particularly the alleged history of family violence, much of it seemingly supported by objective evidence, the primary judge either allowed extraneous irrelevant matters to guide or affect him or he has mistaken facts or failed to take into account material considerations, to impermissibly reach the conclusion that the children had a meaningful relationship with the father.
Grounds 7(c) and (d) – effect of change (s 60CC(3)(d)) and relationships with friends and acquaintances in India (s 60CC(3)(b))
Grounds 7(c) and (d) are in the following terms:
7.The primary judge’s evaluation of the best interests of the children the subject of the proceedings was vitiated by reliance upon assumption or inferences for which there was no, or no adequate evidentiary foundation, including:
…
c.assuming that the repatriation of the children to India after they had acquired some level of settlement in Australia would not have potentially adverse implications for the children;
d.assuming that repatriation of the children to India would offer the opportunity for the children to resume former relationships in India;
…
The primary judge made the following findings in relation to the likely effect of any changes in the children’s circumstance:
59.There is no suggestion that the father’s application for a return order would involve separation of the children from their mother. But the children have been living in Australia now for almost two years. I accept that there has been some level of settlement of the children in Australia as contended by the mother. An order for their return to India would involve separation of them from their friends and schoolmates in Australia.
60.Return to India would also involve the children leaving the home of their grandparents with whom presumably they have close relationships.
61.But return to India would presumably offer opportunity for the children to resume relationships which they had with friends and acquaintances in India prior to them leaving that country.
Given that his Honour found that the order for the children’s return to India would involve separation from grandparents, their friends and school mates in Australia, there is no basis for asserting that the primary judge found that the repatriation order would not have potentially adverse implications for the children.
I accept that the presumption which the primary judge made at [61] does not arise from the evidence and is impermissible speculation. To that extent there is merit in Ground 7(d).
Ground 3
Ground 3 states that “[t]he primary judge erred in law by failing to undertake any, or any adequate evaluation of the competing parenting proposals advanced by the parties.
The mother did not develop this ground of appeal, but rather repeated and relied upon the facts and circumstances articulated in support of Grounds 1 and 2. I accordingly, do not intend to deal with this ground of appeal separately in any detail and rely upon the earlier discussions in relation to Grounds 1 and 2. Ground 3 does not have any merit independent of those grounds.
Ground 9
Ground 9 states:
The primary judge erred in principle by making orders which were conditional upon undertakings in circumstances where the party proffering such undertakings could not be compelled to comply with the undertakings, or able to be dealt with by the court in the event that the undertakings were not complied with.
Again, the mother did not press this ground of appeal independently of submissions made in respect of other grounds, and accordingly, I do not need to further address Ground 9.
Conclusion
It follows that the appeal ought to be allowed and the orders made by primary judge on 15 July 2019, set aside. The proceedings should be remitted for rehearing.
Costs
The appeal has been successful on a question of law and the matter shall be remitted for rehearing. Neither party seeks an order for costs pursuant to s 117(2) of the Act nor would one be just. Both parties seek costs certificates for the hearing of the appeal and the rehearing pursuant to ss 9, 6 and 8 of the Federal Proceedings (Costs) Act 1981 (Cth). These certificates shall be granted.
Tree J
I agree that the appeal should be allowed for the reasons given by both Aldridge J and Watts J, drafts of which I have had the advantage of reading.
I certify that the preceding one hundred and thirty four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Tree JJ) delivered on 23 July 2020.
Associate:
Date: 23 July 2020
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