Harshani and Darnith
[2019] FamCA 89
•26 February 2019
FAMILY COURT OF AUSTRALIA
| HARSHANI & DARNITH | [2019] FamCA 89 |
| INTERNATIONAL TRAVEL – where final orders have been made that the mother have sole parental responsibility and that there were orders of the court that neither parent take a now ten year old child out of Australia, the father’s application for permission to travel to Country B and Country N was concerning because of the paucity of evidence – Father alleged that the mother’s allegations against him were vexatious – mother made allegations that would give rise to concerns of the court as to the father’s trustworthiness and the father had failed to answer any of those allegations in an affidavit that he filed subsequent to receiving the mother’s affidavit – application must fail. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Harshani |
| RESPONDENT: | Ms Darnith |
| FILE NUMBER: | MLC | 1556 | of | 2010 |
| DATE DELIVERED: | 26 February 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 21 February 2019 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
That the application in a case filed 5 December 2018 and the response thereto filed 4 February 2019 are dismissed.
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 Harshani & Darnith 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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 1556 of 2010
| Mr Harshani |
Applicant
And
| Ms Darnith |
Respondent
REASONS FOR JUDGMENT
Mr Harshani (“the applicant”) and Ms Darnith (“the respondent”) appeared representing their own interests in the Judicial Duty List on 21 February 2019 with the applicant seeking parenting orders. For the reasons that follow, his application must be dismissed.
The parties have had extensive litigation in this court going back to 2010. The court file is in a number of volumes with over 260 separate documents. Both parties have had extensive use of the court’s resources over the years and it is alarming that a substantial portion of that litigation revolves around the parties’ child G (the child) who is ten years of age. Almost eight years of this child’s life have seen his parent’s litigation including an argument about the validity of their marriage.
The relevant orders which are the genesis of the present application are as follows.
On 25 July 2016, Macmillan J made the following orders by consent of the parties:
2. The mother have sole parental responsibility for the child, save that before making any decision about any major long term issue concerning the child, the mother will advise the father of the issue to be determined, invite him to express his views on the issue and shall take any views, as expressed by the father, into account when making her decision.
3. The child shall live with the mother.
4. The child shall spend time with the father as follows:
(a)during school term, in each alternate weekend from the conclusion of school on Friday (or in the event that Friday is a non-school day then from the conclusion of school on Thursday) until the commencement of school on Monday (and in the event that Monday is a non-school day then the commencement of school on Tuesday), with such alternate weekend arrangements to recommence on the first weekend of each school term;
…
11.Each of the father and mother be and are hereby restrained from instituting any further proceedings without first having filed an application in a case (such application not be served upon the other party) seeking leave to institute proceedings together with an affidavit setting out:
(a)the occasions on which the applicant has previously sought leave; and
(b)disclosing all relevant facts about the application whether supporting or adverse to the application which are known to the applicant.
IT IS FURTHER ORDERED THAT
12.Until further order the mother [Ms Darnith] born … 1967 and the father [Mr Harshani] (also known as [Mr Harshani]) born … 1956 by themselves, their servants and/or agents, be and is hereby restrained from removing the child G (also known as the child) born … 2008 (male) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.
To the extent that the bulk of the orders were made by agreement with the parties, paragraph 12 as shown above appears not to have been.
When examining those orders, it will be clear that the mother was to have sole parental responsibility for major long term decisions about the child but one of the orders to which I have not referred is that the father was to spend time with the child for a significant portion of each of his school holidays. Order 12 precluded both parties from taking the child out of the Commonwealth of Australia. Significantly, before any question could arise about the variation of those orders, paragraph [11] of the orders created a hurdle.
By an application filed 21 September 2018, the husband, obviously conscious of paragraph [11], made an application which was returnable before Johns J. Her Honour granted the applicant leave to bring an application for permission to travel outside of Australia. He wanted to travel to Country B and Country N with the child.
The applicant then filed his application on 5 December 2018 seeking orders that the mother sign any necessary document for the issue of a passport in the name of the child and that “the father be permitted to travel with the child to Country B and Country N during 2018/2019 long summer holiday period”.
The application came on for hearing before Macmillan J on 18 December 2018 and both parties attended in person. Orders on that day adjourning the application were made as orders of the court. There is a dispute between the parties as to the basis of the adjournment but there are no reasons published. However, the respondent said that her Honour indicated that the applicant’s material was lacking in detail specifically in relation to travel itineraries and the like. The applicant denied that Macmillan J said anything of the like but there is no other plausible explanation for why her Honour made the orders that she did. Not only do the orders enable that inference to be drawn but when examination is made of the affidavit upon which the applicant relied, it is clear that it was at best, sparse.
Suffice to say, the orders of Macmillan J on 18 December 2018 required the mother to file a response and any affidavit upon which she intended to rely by 4.00pm on 1 February 2019. That was a Friday. The mother filed a response and an affidavit in support of it on the following Monday morning 4 February 2019.
The father initially took exception to the late filing but having regard to the relatively short period of time involved and the lack of any prejudice to the applicant, I granted the respondent permission to rely on her response and affidavit nuc pro tunc.
Importantly, in the mother’s affidavit filed 4 February 2019 she made serious allegations against the applicant. The applicant is a professional. Allegations of the nature made by the respondent must therefore be treated seriously. I turn below to those allegations.
It is disconcerting that on 15 February 2019, the applicant filed an affidavit and in doing so, acknowledged that the respondent had sent him her affidavits. Apart from complaining about the fact that they were late, he said:
None of the above affidavits addressed the real issue relevant the application (sic) I made on behalf of the son and both affidavits contain irrelevant and frivolous and/or vexatious statement.
Whatever experience and understanding the applicant has of litigation, and one would expect him to have some even by virtue of the fact that he is an experienced litigant in this court, it is curious that there was no specific denial of the allegations. His argument was that they were irrelevant and frivolous and/or vexatious. I do not know however whether there is an alternate explanation for any of the allegations as the applicant did not address those matters.
When the hearing before me began, the applicant acknowledged that his application was no longer applicable because the 2018/2019 long summer holidays had already passed. He asked permission to alter that to read 2019/2020 long summer holidays. He also sought to clarify his order in relation to the passport for the child acknowledging that as the respondent had sole parental responsibility under the orders of 2017, the appropriate order was to direct the respondent to seek a passport for the child. This court does not direct the relevant Minister under the Australian Passports Act to issue passports.
Even if the proposed orders of the applicant were made, paragraph [12] of the 2016 orders would not permit the child to leave Australia and whilst the applicant had some difficulty grasping that, he acknowledged that what he was seeking was a permanent discharge of the Airport Watch Order.
The respondent’s response was not much short of a stream of consciousness contained in ten paragraphs the nub of which was that she sought that the applicant’s application be simply dismissed. She opposed any alteration, temporary or permanently, of the Airport Watch injunctive order.
With those understandings clear to both parties, and in a busy duty list I heard the matter on submissions. Neither party sought to lead any further evidence and neither party proposed that there be cross-examination of the other. Whilst matters in the duty list normally do not contain a right of cross-examination, in some cases, matters can only be determined after the evidence is tested. Here, the issue was relevantly simple and I approach it on the basis of reading the relevant paragraphs of the affidavits and hearing submissions from each party.
The applicant’s evidence was contained in two affidavits. In respect of the first, he said that he was a registered professional and was presently a full-time student, studies which he intended finishing in 2021. He said these matters (that is, his profession) “may be enough” for the court to see his Australian links. He said he intended to travel overseas with the child during the long summer holidays, the cost being arranged by his relatives in Country B. He said there would be no cost for the respondent or for himself and “it is entirely for the benefit of the child”.
Apart from a denial (if that is what it was) of the respondent’s assertion, there was no further evidence.
I asked the applicant why the order [12] was made in 2016 precluding both parties from removing the child from the Commonwealth of Australia. The explanation from the applicant was that it was directed to the conduct of the respondent but that he had settled the matter as a compromise. I am not at all comfortable about that explanation. I pointed out to the applicant that the injunctive order was indefinite unlike the usual order for an Airport Watch restriction which automatically expires after two years. I pressed the applicant on a number of occasions as to what this was all about and what the protection was for the child and why, but the applicant simply pointed to the respondent as being the problem.
It must also be noted that the relationship between these parties was so bad that for whatever reason, they agreed in 2016 that the respondent (as the mother of the child) would have sole parental responsibility for major long term decisions relating to the child’s care. Whilst the 2016 orders provided for extensive time between the applicant and the child, there is no explanation in the affidavits as to why the respondent was given that responsibility in circumstances where the applicant had what might be described as normal and significant time with the child. There was supposed to be communication between the parties about decisions but it is apparent that none of that has occurred or if it has, no mention was made in any affidavit material.
The only inference open to me on the applicant’s evidence is that the relationship between the parents is not only poor but each is so untrusting of the other that the orders to which I have referred remain in force. Those orders create the foundation of concern for the court both as to whether the international travel application should be made even for a holiday period but also more significantly, on a permanent basis. The respondent’s affidavit must be seen as a stream of consciousness but perhaps that is understandable having regard to the fact that she is not a lawyer.
In her affidavit, the respondent said that in all of the “hundreds of affidavit (sic)” there had never been “a single word of relationship or any proof of communication between the child and paternal grandmother”. The respondent’s evidence was that she had serious doubts about whether the applicant was “creating a hypothetical paternal grandmother to receive a sympathetic grounds (sic) to mislead the court as he managed to open the rehearing of child custody case pretending and lying ‘that she had visited Country B and threatened his family’”.
The respondent then said that she identified his behaviour as “unprofessional, misconduct, violent, do not obey a rule of law (sic), untrustworthy, never keeps promises including never complied the court orders (sic)”. I am not sure what that means because no facts were provided but it is clear that in respect of the matters to which I need to turn as an exercise of discretion in a case like this, the court needs to be careful about ignoring allegations where there is a long history of mistrust and lack of communication between the parties.
The respondent went on to say that it was a “huge risk” to allow the child to travel to countries like Country N and Country B. Even though the child would be with his father, the applicant, the respondent said:
Father will find a loop hole to remove the child from Australia and the child will never return.
The affidavit of the husband went on to make serious allegations of “black money generating illegal business processes in [Country N] and [Country B]”. She said that the Child Support Agency had undertaken an investigation of the applicant and “found that huge amount of international money transaction occurred to his numerous bank accounts”. She said the applicant had “accepted” that he had transferred money to Country B as family support and “for his business activities”. She said the case officer noted that there were significant transactions.
Despite the apparent impecuniosity (if that is what it is) she said that the applicant travelled to Country N, Country O and Country B at least in 2016 on more than 15 occasions. She said he had described himself in media as a having a number of professions and responsibilities. However, she said that he was dependent on Centrelink.
It can be seen why the subsequent affidavit of the applicant which did not deny any of these matters is concerning bearing in mind the serious nature of the allegations which underpin the respondent’s assertion that the applicant would find a “loop hole” to take the child from Australia and never return.
Her long affidavit went on to say that Macmillan J in December 2018 had told the applicant that he had to provide details about who he was visiting in Country N and Country B and relevant contact numbers but he had failed to do so. I have already referred to this but one might imagine that with the palpable lack of trust, the applicant might have contemplated giving that sort of detail to the mother of his child.
The respondent went on to say that the applicant had failed to provide his financial commitments in Australia as directed by Macmillan J a statement that the applicant denies was made and as I have earlier said, I have no reasons to understand exactly what occurred. However, common sense dictates that if someone is either impecunious, living on Centrelink or having no income (which are the assertions of the respondent) one might establish that there is a basis to say that if the respondent need some form of security of comfort for the return of the child, a fund could be provided. No such offer was made at any time by the applicant.
On the ninth page of the respondent’s affidavit, she said that there was an incident in 2011 about kidnapping the child but as the accusation was so vague, I propose to ignore that. Further accusations were made about threats made by the applicant in 2012 and a concerning assertion that in 2014, the applicant “arranged two of his employees to enter my residential property to harm me or kidnap the child”. Significantly, all of the events about which the respondent raised concerns precede the injunctive order. If they do not shed any light on why that Airport Watch injunction was made, they certainly add colour to why the order might have been made indefinitely.
What I have set out is the limit of the affidavit material upon which the court has the opportunity to determine this particular application.
In previous decisions (Gin and Hing [2010] FamCA 617 approved in Lorde and Chu [2015] FamCAFC 3), reference was made to the discretionary nature of the orders that are sought here bearing in mind the reference in s 60B of the Family Law Act 1975 (Cth) (“the Act”) that whatever parenting order is made by the court must be proper.
Decisions about international travel are difficult because as I indicated to the parties, they require the court to take a leap of faith. Normally, international travel could be determined on the basis that if a parent has responsibility for major long term decisions let alone normal day to day decisions, the provisions of s 61B indicate that that parent has all of the powers, duties and authority in relation to decisions about a child. Here again, there is a problem for the applicant by virtue of the fact that for whatever reason, he conceded in 2016 that the respondent should have sole parental responsibility even in circumstances where there was to be discussion about what was to take place. The lack of communication between the parties and their dislike for one another was palpable.
Section 60CA provides that a court must regard the best interests of a child as the paramount consideration. The paramount consideration means that that cannot be the only interest that the court has to consider. A parent’s desire to travel internationally with a child particularly for the purposes of a holiday which one would presume would benefit a child, must be part of the consideration but where the court has doubts about the interests of the parents as against the best interests of a child, the latter must prevail.
Reference in this case to the best interests principles as determined by the factors in s 60CC of the Act are of no assistance. The father is having regular contact with the child but I have no sense from the evidence provided by the parties as to whether his current relationship with his son is a meaningful one. I have even less understanding of what benefit the child would obtain by travelling internationally with his father.
In Line and Line (1997) FLC 92-729 some factors relevant for consideration in an international travel case were said to be:
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests or the residence of close family or friends here);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
(c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests or the residence of close family and/or personal friends there); and
(d)Whether the country of travel was a signatory to the Hague Convention.
At an interim level and without the evidence being tested, findings of fact are extremely difficult. However, using the approach just set out, the relevant questions can be answered fairly simply.
Whilst the applicant asserts continuing ties with Australia, it is curious that he says that all of the costs of any such travel would be paid by his relatives in Country B which would tend to suggest that he has limited financial resources here. As I have already observed, he did not present any evidence to refute what the respondent asserted. I know little about the extent of his business interests here even though the respondent asserted what is profession was. He pointed to the fact that he was undertaking study. I therefore have little understanding of what ties there are between the applicant and Australia.
In respect of the second question about the possible motives not to return, I am unsure in the absence of evidence from the applicant why all of the money asserted by the respondent sent to Country B. Whilst wild assertions are not uncommon in many court cases and particularly concerning where the evidence cannot be tested, the unusual feature of this case is that there appears to have been a child support investigation into the applicant. If there was not and the allegations are just that or indeed wildly exaggerated, why did the applicant not respond not just with a denial but with cogent evidence as to how all of these matters had occurred.
That second question also focuses on the level of conflict between the parents. In this case despite eight years of separation, the war has not ended and the lack of communication is concerning. An assertion by the respondent that she does not trust the applicant must not be simply brushed aside. Her assertion that there has never been reference to the applicant’s family in previous affidavits is also concerning. Why is the applicant going to Country N if his family all reside in Country B?
The third question relates to possible motives to remain in one of the two countries just mentioned. There would seem to be, from photographs produced by the respondent, some connection between the applicant and activities in the country where the photographs were taken. I do not know what those photographs mean but they seem to involve persons in some form of academic institution, religion or authority. It may be that there is a business activity of the applicant overseas but again, the applicant has chosen to make no mention of that. His whole explanation is that he wants to travel internationally for family purposes so that his son the child can benefit. Why then, one must ask, is there no reference to what he is intending to do in Country N?
The fourth question can be easily answered. Whilst Country B is a signatory to the Convention, Country N is not.
When all of the factors are taken into account, the determination must be made on the balance of probabilities and whilst the applicant dismisses the assertions and allegations of the respondent as being vexatious, they remain unanswered. The leap of faith to which I earlier referred is too great in this case absent proper material. The unanswered questions about the need for a permanent travel injunction adds to the intrigue. The logic behind the applicant conceding sole parental responsibility to the respondent in 2016, must mean that the court cannot ignore not only the responsibilities of the respondent as a parent but also her wishes.
In my view, the application does not justify the leap of faith and accordingly, it will be dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 26 February 2019.
Associate:
Date: 26 February 2019
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