Gujic & Arterbury
[2024] FedCFamC1A 48
•10 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gujic & Arterbury [2024] FedCFamC1A 48
Appeal from: Arterbury & Gujic [2024] FedCFamC1F 88 Appeal number:
NAA 41 of 2024
File number:
SYC 166 of 2024
Judgment of:
ALDRIDGE, AUSTIN & GILL JJ
Date of judgment:
10 April 2024
Catchwords:
FAMILY LAW – APPEAL – PARENTING – Appeal from orders for summary return of children to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction – Where the appellant father challenges factual findings made by the primary judge – Where the appellant filed an Application to adduce further evidence in support of the challenge – Where the appellant sought to adduce material in a foreign language and accompanying translations obtained through the use of Google Translate – Where the evidence does not meet the requirements of s 146 of the Evidence Act 1995 (Cth) and is inadmissible – Application dismissed – Where the appellant is unable to demonstrate that the primary judge’s findings are wrong – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.
Legislation:
Evidence Act 1995 (Cth) ss 55, 135 and 146
Family Law Act 1975 (Cth) ss 60CC, 93A and 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.17
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
In re L (Minors) [1974] 1 WLR 250
Killam & Loeng (2015) FLC 93-642; [2015] FamCAFC 41
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
ZP v PS (1994) 181 CLR 639; [1994] HCA 29
Number of paragraphs:
87
Date of hearing:
26 March 2024
Place:
Sydney
Counsel for the Appellant:
Ms Reid
Solicitor for the Appellant:
Parker Family Law
Counsel for the Respondent:
Mr Keserovic
Solicitor for the Respondent:
Unified Lawyers
ORDERS
NAA 41 of 2024
SYC 166 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GUJIC
Appellant
AND: MS ARTERBURY
Respondent
ORDER MADE BY:
ALDRIDGE, AUSTIN & GILL JJ
DATE OF ORDER:
10 April 2024
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Application in an Appeal filed by the appellant on 12 March 2024 is dismissed.
3.Order 2(a) made by the primary judge on 22 February 2024 be amended to read as follows:
2. To facilitate the children’s departure from the Commonwealth of Australia:
(a)The parties, through their lawyers, are to agree on a date and place for the children to go into the mother’s care, and failing agreement, at 10.00 am Thursday 11 April 2024, at the car park of the Suburb B McDonalds, C Street, Suburb B; and
4.Order 3 made by the primary judge on 22 February 2024 be amended to read as follows:
3.The Court requests that from 10.00 am on 11 April 2024, the Australian Federal Police remove the names of the children, X (male) born in 2017, Y (female) born in 2020, and Z (male) born in 2021 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.
5.The appellant is to pay the respondent’s costs of the appeal, being $19,231.17 (including GST).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gujic & Arterbury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, AUSTIN & GILL JJ
This appeal is in relation to a decision by the primary judge permitting the respondent mother to remove the three children of the relationship from Australia and to return them to Malaysia in contemplation of family law proceedings being conducted in the courts of that country.
The orders made by the primary judge were predicated upon her assessment that the summary return of the children to Malaysia, a country which is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, was in the children’s best interests, in accordance with the principles set out in ZP v PS (1994) 181 CLR 639 and in Killam & Loeng (2015) FLC 93-642.
BACKGROUND
The respondent mother was born in 1987 in Iran. She has lived in Malaysia at least since 2010 on various visas. She was studying in Malaysia when the parties met in 2016.
The appellant father was born in 1980 and is an Australian citizen. He is a self-employed director and manager of a company.
The parties commenced cohabitation in late 2016 in Malaysia. They were married in 2018 in Malaysia.
There are three children of the relationship: X (born in 2017, 6 years old), Y (born in 2020, 4 years old), and Z (born in 2021, 2 years old). The children were all born in Malaysia and lived there until recently. They are citizens of Australia, but not of Malaysia or Iran.
In late 2023, the appellant, without giving notice to the respondent, relocated with the children from Malaysia. He advised the respondent that her Malaysian visa had been cancelled and arranged for security guards to escort her from the home with limited belongings, and to take her to the airport for the one-way flight to Iran that he had arranged. They were further instructed to make a report to the Malaysian immigration authorities in the event the respondent did not leave the country for Iran in accordance with his arrangements. The appellant also caused the respondent’s telephone to be removed.
The respondent refused to leave Malaysia, and contacted various embassies, high commissions and other authorities in order to identify the children’s whereabouts as the appellant did not say where he was taking them. The appellant rebuffed the respondent’s attempts to communicate with him.
Two days after relocating, the appellant commenced divorce proceedings in Malaysia.
The respondent commenced proceedings in respect of the children in a court in Malaysia about one month later.
Shortly after discovering that the children had been removed to Australia, on 12 January 2024 the respondent filed an urgent Initiating Application in Division 2 of the Federal Circuit and Family Court of Australia. She sought sole parental responsibility and that the children live with her.
The matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia and was heard by the primary judge on 16 February 2024, with judgment being delivered on 22 February 2024. That judgment permitted the prompt removal of the children from Australia to Malaysia, in expectation that the parties’ dispute should be resolved in that forum.
The appellant filed a Notice of Appeal on 23 February 2024 and a stay was granted by the primary judge on that day pending the outcome of this appeal.
On 12 March 2024, the appellant filed an application to adduce further evidence on the appeal.
THE BASIS OF THE APPEAL
By his Summary of Argument, the appellant identified six grounds of appeal.
The first two, which were directed to the primary judge’s assessment of risk of the respondent removing the children from Malaysia to Iran, were expressed in the following terms:
1.The learned trial judge erred in finding that there was no viable evidence that the mother would not bring the children back from Iran concluding that the mother herself had returned from Iran.
2.The learned trial judge erred in finding that the assertion of the father that the mother would take the children to Iran was a “red herring”.
(Emphasis removed)
The further evidence that was the subject of the application was, insofar as it was argued before the Full Court, directed to these first two grounds. The focus of the argument supporting admission of the material on appeal was that it would tend to establish that the primary judge was wrong in her assessment of risk that the respondent may, if permitted to return with the children to Malaysia, abscond with them to Iran, her country of origin.
Accordingly, the issue of the admission of this further evidence will be addressed with Grounds 1 and 2.
The third appeal ground was abandoned.
The fourth, fifth and sixth grounds were directed to purported findings by the primary judge and were expressed in the following terms in the appellant’s Notice of Appeal:
4. The learned judge erred in finding that the children were native Malaysians.
5.The learned judge erred in concluding that the mother had visas for the children’s sustained residence in Malaysia.
6.The learned judge erred in concluding that the mother was able to meet the needs of the children in Malaysia.
Each of the grounds was directed to factual conclusions by the primary judge. No challenge was made to the legal principles applied by the primary judge.
In dealing with such a challenge to factual findings the plurality in Fox v Percy (2003) 214 CLR 118 of Gleeson CJ, Gummow and Kirby JJ identified the obligation “to conduct a real review of the trial”[1] and that “in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law.”[2]
[1] Fox v Percy (2003) 214 CLR 118 at [25] (“Fox v Percy”).
[2] Fox v Percy at [29].
In determining whether there has been an error of fact, the plurality in Lee v Lee (2019) 266 CLR 129 of Bell, Gageler, Nettle and Edelman JJ observed that “[a]ppellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence.”[3]
[3] Lee v Lee (2019) 266 CLR 129 at [55] (“Lee”).
However, the plurality further observed that otherwise an appellate court is generally “in as good a position as the trial judge to decide on the proper inference to be drawn from the facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.”[4]
[4] Lee at [55] citing Warren v Coombes (1979) 142 CLR 531; see also Fox v Percy at [25].
Grounds 1 and 2
The appellant argued the first two grounds together which both relate to the primary judge’s conclusions about the appellant’s contentions as to risk of the mother removing the children to Iran. They are as follows:
1.The learned Judge erred in finding that there was no viable evidence that the mother would not bring the children back from Iran by concluding that the mother had previously returned the children from Iran.
2.The learned judge erred in finding that the assertion of the mother that the mother would take the children to Iran was a red herring.
(Notice of Appeal filed 23 February 2024)
This was, firstly, an attack upon [62] of the primary judge’s reasons. Having set out each of the appellant’s assertions regarding the respondent at [59], the primary judge then assessed them and concluded at [62]:
Indeed, there is no reliable evidence before me that the mother had any plans to not return from Iran. The father’s conjecturer [sic] and speculation is not evidence.
It was secondly an attack upon the primary judge’s ultimate characterisation of this issue at [106]:
I accept the mother’s submission that the threat of going elsewhere is a red herring …
As noted above, in aid of his attack upon the primary judge’s conclusions as to risk of removal of the children to Iran, as contained in Grounds 1 and 2, the appellant sought to adduce further evidence on the appeal.
His application was supported initially by an affidavit on 12 March 2024. This was followed by a further affidavit filed 25 March 2024, the day prior to the hearing of the appeal that, including annexures, comprised 741 pages.
The discretion to receive further evidence on appeal is contained at s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It is a provision that is, substantively, in the same terms as its predecessor, s 93A of the Family Law Act 1975 (Cth) (“the Act”). In dealing with that predecessor the plurality in CDJ v VAJ (1998) 197 CLR 172 of McHugh, Gummow and Callinan JJ described the discretion, insofar as it relates to parenting proceedings, as requiring the court on appeal to “have regard to the effect that the further evidence may have in determining whether the best interests of the child require the upholding, varying or setting aside of the parenting order.”[5]
[5] CDJ v VAJ (1998) 197 CLR 172 at [87] (“CDJ v VAJ”).
The plurality observed that the discretion is to be exercised in the context of its remedial purpose, being “to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous.”[6]
[6] CDJ v VAJ at [109].
As the discretion “exists to serve the demands of justice”,[7] usually its exercise will involve the court being satisfied that the further evidence would have produced a different result had it been available at the trial. This in turn requires the appeal court to be satisfied of two further matters, being that “given the findings of the trial judge, the further evidence if tendered before [the trial judge] was likely to have produced a different result” and that “the best interests of the children required rehearing of the husband’s application” despite the heavy burden such further hearing would involve.[8]
[7] CDJ v VAJ at [111].
[8] CDJ v VAJ at [149].
Although the ‘effect’ factor is of great weight in determining whether to admit further evidence, other considerations may also be taken into account, such as the desirability of finality and the discoverability of the evidence.
The 12 March 2024 affidavit addressed a confined set of matters. The first was a selected set of messages said to have been extracted from the respondent’s phone, said to evidence a relationship between the mother and a purported former lover, Mr N, in Iran. The messages sought to be adduced were the original messages in Persian and what the appellant described as “accompanying translation[s] in English”.[9] The accompanying translations were described by the appellant as having been obtained by using Google Translate. The significance attached to the messages was said to be that they demonstrated a cogent risk of the respondent removing the children to Iran to live. Whether they were capable of doing so will be addressed below.
[9] Appellant’s affidavit filed 12 March 2024, paragraph 11.
The second matter was evidence of the respondent spending time with the children pending and following the proceedings before the primary judge, accompanied by apparent settlement negotiations and a generalised expression by the appellant of some willingness to support the respondent in respect of finances and a visa should she remain in Australia. It is difficult to see how this evidence was of assistance to the appellant, and little attention was directed to it.
The further affidavit was filed by the appellant on 25 March 2024, one day before the appeal was due to be heard. Neither counsel for the appellant nor counsel for the respondent had managed to read the entirety of this material by the time of the appeal, indicating considerable procedural unfairness in adducing the evidence so close to the appeal.
In that affidavit the appellant described health problems as the reason for the delay but provided no further evidence to support his own description of the health issues.
The further material sought to be relied upon included text message screenshots, Google Translate translations of messages, purported transcripts along with electronic recordings of conversations between the appellant and respondent, along with updating information regarding time spent between the children and the respondent and how the appellant facilitated this.
The affidavit and annexures included text messages which the appellant describes as being chats in language Q between the respondent and Mr N and messages between the respondent and her mother, each with “accompanying translation in English”[10] obtained using Google Translate,[11] messages in English between the respondent “and someone identified as [P] which suggests that [the respondent] should play the ‘religious card’ in Court proceedings”[12] and transcripts.
[10] Appellant’s affidavit filed 25 March 2024, paragraphs 11 and 14.
[11] Appellant’s affidavit filed 25 March 2024, paragraph 12.
[12] Appellant’s affidavit filed 25 March 2024, paragraph 34.
The transcripts were described by the appellant as exchanges occurring between him and the respondent during time the respondent spent with the children in his presence in Australia. To support the transcripts, two audio recordings were emailed along with the affidavit for filing. No attempt was made to tender the recordings.
The affidavit also annexed text messages in the English language purportedly between the appellant and the respondent, described as “exchanges between [the respondent] and [the appellant] on 28 August, 6 September, 19 September and 22 September 2023”.[13] The messages in this last category were not brought to the attention of the bench during the hearing of the appeal.
[13] Appellant’s affidavit filed 25 March 2024, paragraph 16.
Given the extent of the material, counsel for the appellant offered to identify the five most salient examples from the annexures to support the argument that the material should be admitted. The examples were taken from the purported translations of messages between the respondent and Mr N, and from the purported transcript of interactions between the appellant and respondent. These, therefore, formed the focus of the justification for the receipt of the further evidence.
Should the further evidence be admitted?
There was little explanation by the appellant as to either why the material sought to be admitted (other than the post hearing transcript and recordings, and the details of time between the respondent and the children) was not placed before the primary judge, or why it was produced as late as it was.
The various messages were apparently extracted from a mobile telephone that had been previously used by the respondent, but which had been seized from her by the security guards sent by the appellant to evict her from the home and enforce her exit from Malaysia to Iran in late 2023. Despite having been so taken from the respondent, in the affidavit of 12 March 2024 the appellant somewhat coyly described:
On 26 February 2024 I was able to gain access to the archive files in the company owned device that [the respondent] had the use of in Malaysia which was recovered and protected for integrity of data and records purposes.
(Appellant’s affidavit filed 12 March 2024, paragraph 4)
Whilst this passage was, at face value, suggestive that the appellant had only recently come into possession of the device and its content, the actual terms of the assertion obscured when the appellant obtained knowledge of and access to the material annexed. As noted above, the device was taken from the respondent in late 2023. No description is given by the appellant as to when he came into the physical possession of it, or whether 26 February 2024 marked the first access to the device or its content.
The lack of explanation in relation to the months passing from the taking of the device from the respondent prior to producing material from the device gives little reason to consider that the delay is adequately explained in the above extracted paragraph. Accordingly, no real explanation was given as to why this material was not placed before the primary judge, in circumstances where the appellant took control of the relevant device in late 2023.
However, even assuming that this description, in combination with the health issues identified by the appellant, formed a good explanation of the late production of the material, a more fundamental barrier arises in respect of those aspects of the annexed material that required translation.
Counsel for the appellant correctly conceded that if the translations were not admissible, the screenshots that relied upon them would be worthless.
Counsel for the appellant asserted, without any evidential basis, that as the text messages were translated using Google Translate, they were translated literally and not colloquially.
Leaving aside the requirements of r 2.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), as they relate to the necessity to file a translation, supported by affidavit, of documents required to be filed with the Court, the attempt to proffer a Google translation is not, in this instance, admissible.
Relevantly, s 146 of the Evidence Act 1995 (Cth) (“Evidence Act”) provides a scheme for rendering admissible evidence that is produced by processes, machines or other devices. Section 146 is in the following terms:
146 Evidence produced by processes, machines and other devices
(1) This section applies to a document or thing:
(a) that is produced wholly or partly by a device or process; and
(b)that is tendered by a party who asserts that, in producing the document or thing, the device or process has produced a particular outcome.
(2)If it is reasonably open to find that the device or process is one that, or is of a kind that, if properly used, ordinarily produces that outcome, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
It might be considered that Google Translate meets the description of a device or process. However, to take the benefit of the presumption contained in s 146, it is necessary that evidence be led as to what it is that Google Translate ordinarily produces. No such evidence was led, and so it cannot be known in this instance, other than in a most general sense, what it is that Google Translate does.
The lack of evidence and particularity mean that while it might be taken that Google Translate performs, in a general sense, translation, the degree to which it does so has not been established. For example, it cannot be known whether what is produced is a literal or a figurative translation, whether it is some form of approximation, the general degree to which it is an approximation, or whether it meets some other description. The Court is left with no evidence as to the ordinarily produced outcome of using Google Translate.
Not only does this present a barrier to relying upon s 146, but it also represents a barrier to establishing the basal requirement of relevance, as the Court is not equipped with sufficient means to establish what it is that Google Translate produces, and accordingly, its ability or capacity to rationally affect, either directly or indirectly, the probability of the existence of a fact in issue, pursuant to s 55 of the Evidence Act. Similar issues would also arise in the application of provisions such as s 135 of the Evidence Act.
Whilst it may be the case that Google Translate could be used to affect an admissible translation of a document, more is required than the bare description that recourse was had to Google Translate.
This analysis renders the purported translations as inadmissible, and the underlying messages as without evidential worth in the absence of translation.
The transcripts of interactions between the appellant and the respondent did not require translation. They post-dated the initial hearing. The appellant apparently recorded exchanges between the parties during times that the respondent spent with the children.
However, the passages that we were taken to by the appellant lacked any cogency to make good the appellant’s proposition of a heightened risk that the respondent may disappear with the children. Even without considering the absence of any explanation of the circumstances of the recordings or matters that may go to the lawfulness of so doing, or the apparently selective, decontextualised nature of the extracts, the terms of the extracts themselves were simply not probative of the proposition of heightened risk of removal of the children to Iran.
Similarly, the purported direct messaging between the appellant and respondent did not require translation. However, we were not taken to the terms of these messages. Nor was it explained why they would render the primary judge’s conclusions erroneous.
Under those circumstances the appellant has fallen short of showing that the proposed material would demonstrate that the primary judge was wrong, in particular as to her Honour’s assessment of the risk of removal of the children to Iran.
This alone means the proposed evidence should not be admitted on appeal. However, such a result is fortified when the lack of adequate explanation for the failure to adduce the material before the primary judge is considered.
This leaves these grounds to be considered solely in the light of the material before the primary judge. Although on appeal counsel emphasised the appellant’s subjective fear that the respondent may disappear to Iran with the children, the primary judge was obliged to determine the risk on the evidence before her. The expression of subjective fear was not probative to establish risk. The assessment of risk required the assessment of the circumstances.
The primary judge’s conclusions were based upon her assessment that there was an absence of reliable evidence to establish that the wife had any plans not to return from a previously proposed trip to Iran. Despite the emphasis of this issue in the appellant’s case, the primary judge’s determinations were made in the context of the appellant having only provided limited and unparticularised evidence in respect of the respondent making any such threat. This led to the primary judge’s description of a lack of reliable evidence.
Counsel for the appellant appeared to accept that the primary judge’s description of an absence of reliable evidence was “fair”, but continued on to assert that the primary judge had not placed enough reliance on what counsel described as “constant threats”. It should however be clear that the appellant’s affidavit material failed to meet counsel’s description of constant threats to disappear with the children.
At [59] of the judgment the primary judge set out the various allegations made by the appellant at [60] of his affidavit of 8 February 2024.
Although the appellant had asserted that the respondent had made threats and accusations against him, escalating over the previous years, when it came to the proposition that the respondent threatened to make the children disappear in Iran, the closest example was as set out by the appellant at [60], which was in the following non-specific terms:
While I was in [Country F] early October 2023 [the respondent] was persistently antagonizing me and restricting my ability to talk to the children and threatening to disappear with the children. She demanded to take children to Iran at the end of November early December...
(Appellant’s affidavit filed 8 February 2024, paragraph 60(f))
(As per the original)
Observing the unparticularised nature of the allegations, and the lack of evidence able to sustain the description of “continued threats” the primary judge declined to place weight upon the “vague assertions” (at [60]). The primary judge, in determining a lack of reliable evidence of a plan not to return from Iran, observed that the evidence disclosed that the appellant had been included in plans to travel to Iran, and in the face of the appellant’s vague evidence of a threat being made whilst he was in Country F, there was no such removal of the children to Iran.
Further, the primary judge observed the cogent factors that point to the respondent remaining with the children in Malaysia, including her enrolment in tertiary education and securing of a visa.
It was in this context of a lack of reliable evidence to establish risk of removal to Iran that the primary judge made a corresponding finding that the issue was a red herring. To so describe the issue as a distraction accurately reflected the pursuit of the issue in the absence of reliable evidence.
No error is demonstrated.
Ground 4
The fourth ground was in the following terms:
The learned trial judge erred in finding that the children were native Malaysians.
(Appellant’s Summary of Argument filed 11 March 2024, p.5)
At [112] of the judgment the primary judge described Malaysia as “the children’s ‘native land’, in the sense described by Buckley LJ in In re L (Minors) [[1974] 1 WLR 250 at 264–265]”. That sense was set out by Buckley LJ in the following terms:
To take a child from his native land, to remove him to another country where, maybe, his native tongue is not spoken, to divorce him from the social customs and contacts to which he has been accustomed, to interrupt his education in his native land and subject him to a foreign system of education, are all acts (offered here as examples and of course not as a complete catalogue of possible relevant factors) which are likely to be psychologically disturbing to the child, particularly at a time when his family life is also disrupted. If such a case is promptly brought to the attention of a court in this country, the judge may feel that it is in the best interests of the infant that these disturbing factors should be eliminated from his life as speedily as possible. A full investigation of the merits of the case in an English court may be incompatible with achieving this. The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child's own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily resolved in the courts of that country may well be regarded as being in the best interests of the child. In my judgment, the decision of this court in In re H. (Infants) [1966] 1 W.L.R. 381 was based upon considerations of this kind.
The issues identified by the appellant as rendering such a factual description as wrong were that the evidence was that the children are Australian citizens and Malaysia was not intended to be their permanent place of residence.
Those contentions, even if established, do not demonstrate that the primary judge was in error in adopting such a description of the children’s relationship with Malaysia.
Ground 5
The fifth ground was in the following terms:
That the learned trial judge erred in concluding that the mother had visas for the children’s sustained residence in Malaysia.
(Appellant’s Summary of Argument filed 11 March 2024, p.6)
This criticism was directed at the finding by the primary judge at [104]:
…By reference to the parties’ second affidavits, I am satisfied both parties have passport or Visa options available to them to allow the children to live in either Australia or Malaysia.
The impugned factual finding, relating to “sustained residence”, was not a finding made by the primary judge. As the ground is not directed to a factual finding that was actually made by the primary judge, the ground is not established.
Ground 6
The sixth ground was in the following terms:
The learned trial judge erred in concluding that the mother was able to meet the needs of the children in Malaysia.
(Appellant’s Summary of Argument filed 11 March 2024, p.6)
This was explained by the appellant to be a finding derived from the decision made by the primary judge, a necessary ingredient being that the mother is able to meet the children’s needs, both financial and emotional.
The Summary of Argument of the appellant was solely directed to the financial support of the children by the mother in Malaysia. The finding, insofar as one was made by the primary judge, was at [88] and is in the following terms:
Maintaining the children: the [appellant] was the sole breadwinner. In the meantime, the [respondent] has obviously found the means to fly to Australia and stay here until, I am told, 26 February 2024.
(Emphasis in original)
Apart from the implication of resourcefulness on the part of the respondent, the primary judge made no findings as to financial capacity that are able to be impugned. The issue of capacity to provide financial support formed but a part of the suite of matters considered by the primary judge pursuant to s 60CC of the Act in determining that the children should return to Malaysia in the care of the mother.
There is no merit in this ground.
CONCLUSION
The appeal should be dismissed.
COSTS
In the event that the appeal was unsuccessful the respondent sought that the appellant meet her costs as set out in her costs schedule.
Section 117 of the Act provides that each party shall bear their own costs unless a consideration of the circumstances set out at s 117(2A) justify the making of a costs order.
In this case two matters justify an order that the appellant pay the respondent’s costs. The first is that the appellant has been wholly unsuccessful. The second relates to the financial circumstances of the appellant. The appellant disclosed, by his Financial Statement filed 8 February 2024, weekly salary of $15,000 at page 3, whilst at page 2, average weekly income of $3,500. A receipt of $52,000 was also described as having been paid to the appellant for repatriation and rental expenses. Although the income figures differ, the Financial Statement reveals favourable financial circumstances enjoyed by the appellant.
An order will be made for the appellant to pay the respondent’s costs of the appeal in accordance with the schedule of costs at $19,231.17 (including GST).
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Gill.
Associate:
Dated: 10 April 2024
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