HARTNETT & SAMPSON
[2014] FCCA 100
•24 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARTNETT & SAMPSON | [2014] FCCA 100 |
| Catchwords: PRACTICE & PROCEDURE – Family Law Rules 2004 do not apply in the Federal Circuit Court. |
| Legislation: Australian Passports Act 2005 (Cth), ss.3, 11 Child Support (Assessment) Act 1989 (Cth), ss.3, 4 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 65Y, 67ZD, 106A Federal Circuit Court of Australia Act 1999 (Cth), s.62 Federal Circuit Court Rules 2001, r.6.19 |
| Busch & O’Shea [2013] FamCA 461 Kuebler & Kuebler (1978) FLC 90-434 Thomason & Malhotra [2010] FamCAFC 85 |
| Applicant: | MR HARTNETT |
| Respondent: | MS SAMPSON |
| File Number: | SYC 526 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 9 and 17 January 2014 |
| Date of Last Submission: | 17 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondents: | Mr de Robillard |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
Order (4) made by the Family Court of Australia 4 May 2007 restraining the parties from removing or causing or permitting the removal of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Commonwealth of Australia and directing the Australian Federal Police to place the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia is discharged.
The Australian Federal Police are to remove the names of the children X (a female) born (omitted) 2003 and Y (a male) born (omitted) 2004 from the Family Law Watch List in force at all points of arrival and departure from Australia forthwith.
The children X born (omitted) 2003 and Y born (omitted) 2004 are permitted to travel internationally as provided by s.11(1)(b) of the Australian Passports Act 2005 subject to compliance with Order (4) and for this purpose the Applicant father is permitted to apply for the issue of Australian passports for the children X and Y.
The parties are each permitted to take the children X and Y out of Australia to a place outside Australia in accordance with s.65Y(2)(b) of the Family Law Act 1975 PROVIDED THAT the parent wishing to travel with the children gives the other parent at least four (4) weeks’ prior written notice of the intended travel out of Australia specifying:
(a)The dates and times of departure and return;
(b)The means of transport and all details of the airline or shipping company with which the parent will be travelling with the children;
(c)The intended destination;
(d)Contact numbers and addresses for the children for the duration of the period when the children will be out of Australia; and
(e)Flight numbers and times if the proposed travel is by air.
IT IS NOTED that publication of this judgment under the pseudonym Hartnett & Sampson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 526 of 2013
| MR HARTNETT |
Applicant
And
| MS SAMPSON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application in a Case by the father of two children, a girl aged eleven and a boy aged ten, for orders to remove the children’s names from what is now called the Family Law Watch List and permission to obtain passports for the children. The father wished to take the children on a holiday to the (country omitted) to stay with friends in (country omitted). It appears now that, due to the time that has passed, the proposed holiday for the children will not be able to take place for a while.
The mother opposes the Application.
The Independent Children’s Lawyer has indicated that she does not wish to be heard on the matter and has been excused from participation in the hearing.
Background
The parties have been engaged in litigation both in this Court and the Family Court for a number of years.
On 4 May 2007 in the Family Court at Sydney Judicial Registrar Loughnan,[1] made a number of Orders, of which Order (4) is relevant to this Application. That Order provided:
Until further order each of the parties is restrained from removing or causing or permitting the renewal of the children X (female) born (omitted) 2003 and Y (male) born (omitted) 2004 from the Commonwealth of Australia and that the Australian Federal Police place the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia AND the Court requested the assistance of the Australian Federal Police in the implementation of this order.
[1] As his Honour then was
On 25 August 2009, in the Family Court at Brisbane, the Honourable Justice Jordan made a number of final parenting orders, including Order 5, providing that the children should live with each parent in Sydney on a week on week off basis during the school term and, during the school holidays the following arrangements would apply:
5.2.1 For one half of the school holiday periods at the end of terms one, two and three as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.2 For the Christmas holidays as agreed between the parties and failing agreement the children shall be with the Wife for the first half of each school period in 2009 and every alternate year thereafter and in every other year the second half of the school holiday period;
5.2.3 For the purposes of this Order, the NSW school holidays shall commence on the Saturday immediately following the last day of the school term and conclude on the Sunday immediately prior to the commencement of the next school term.
On 4 December 2013 the father filed an Application in a Case seeking orders for:
a)the children to be issued with Australian passports;
b)the children’s names to be removed from the Watch List; and
c)other ancillary orders.
The Application was originally allocated a first return date of 10 March 2014 at 9:30 am. However, on 5 December 2013 the father filed an Application for Review of that decision.
On 12 December 2013 his Honour Judge Kemp upheld the Application for Review and made the following Orders:
1. The Application for Review of a Registrar’s decision, filed by the father on 5 December 2013 be upheld.
2. The Application in a Case filed 4 December 2013 by the father be listed for mention on 7 January 2014 at 10:00 am before Judge Scarlett.
THE COURT NOTES THAT:
3. The Registrar did not provide any reasons for the refusal to list the matter on short notice.
4. The father’s proposed travel is to take place in mid to late January 2014.
On 7 December 2014 the matter came before the Court. The father appeared for himself. The mother was represented by her Counsel, Mr de Robillard, who informed the Court that his client was still away in Geelong. Ms Cantrall, solicitor, appeared for the Independent Children’s Lawyer.
Ms Cantrall informed the Court that the Independent Children’s Lawyer did not wish to be heard in relation to the father’s proposed trip out of Australia and felt that it was entirely a matter for the parties themselves. I made an order excusing the Independent Children’s Lawyer from participation in the hearing of the father’s Application.
Counsel for the mother sought an adjournment of the Application to enable his client to prepare an affidavit and to attend Court for the hearing. He explained that his client had only been served on 31 December 2013.
Notwithstanding the fact that the mother had only been served on 31 December, Mr de Robillard called on a Notice to Produce dated 31 January 2013[2] but which was understood by the parties to have been prepared on 31 December 2013. There were some 11 paragraphs on the Notice to Produce and the father opposed the document on the basis that it was too extensive. Mr de Robillard sought that the father should at least produce his passport and I acceded to that application.
[2] sic
The Application was adjourned to Thursday 9 January 2014 to allow the mother to depose to an affidavit and to attend Court. I also directed that the father should produce his current passport on the adjourned date and indicated that I would consider the other documents sought in the mother’s Notice to Produce on 9 January 2014.
On 9 January 2014 the parties attended Court. Mr de Robillard sought to cross-examine the father and I acceded to that application. I directed that both parties should be cross-examined but that cross-examination of each party would be limited to one hour, under the provisions of s.62 of the Federal Circuit Court of Australia Act 1999 (Cth).
The evidence was completed on 9 January and judgment was reserved. Counsel for the mother undertook to provide a written submission by 9:00 am on Monday 13 January. The father originally indicated that he did not intend to make a submission but subsequently changed his mind and provided a written submission.
The mother’s submission was received on the morning of Monday 13 January. Surprisingly, the mother’s counsel, in forwarding a copy of the submission, also made a written request to re-open the proceedings, stating:
She seeks leave to re-open her case.
She has prepared an affidavit which could be filed in Court before 10:00 am today. She seeks a short hearing before his Honour delivers his Judgment….
The Mother will be at the Court precincts from 10:00 am today.
This application was declined, not being in proper form.
Subsequently, that day, the mother filed an Application in a Case, seeking the following orders:
1. That this matter be listed for mention only on an urgent basis today, Monday 13 January 2014.
2. That his Honour Judge Scarlett not hand down a Judgement until such time as the Mother, and if necessary, both the Mother and the Father, have been heard.
3. That his Honour Judge Scarlett list the matter as soon as possible to consider the Mother’s Application to re-open her case.
4. That the Mother be permitted to re-open her case to reply to the misleading evidence provided by the father namely:-
a) that the Ms E children would still be on school holidays in the week commencing on 13th January 2014;
b) that it was not possible to book a flight to (country omitted) without first obtaining an ESTA conformation from (country omitted) Immigration authorities;
c) failing to advise the Mother or the Court that he would be travelling to (country omitted) on business shortly after 10 January 2014;
d) failing to advise the Mother or the Court that he would not be with the children during at least part of his contact period and would otherwise be overseas.
5. That the Father be ordered forthwith to advise the Mother by email:
a) the date of his proposed return to Sydney
b) the name and details of the person/s in whose care the children have been placed while the father has been overseas.
c) to allow the mother telephone contact with each child for a minimum period of 15 minutes each;
d) that such contact be granted between 5.00 and 6.00 pm today 13 January 2014.
6. That any non-compliance with any court rule be and is hereby waived.
7. That the father be served with a copy of this Application and any order made pursuant to this Application through the father’s email address as known to the Mother.
8. Such further order as This honourable court may deem fit.
The Application was accompanied by an affidavit of the mother sworn on 13 January 2014.
In order to allow sufficient time for service under Rule 6.19, I directed that the Application in a Case should be returnable at 10:00 am on Friday 17 January and service should be effected on Tuesday 14 January.
The father filed a Response and two affidavits on 17 January 2014. The deponents to the affidavits were the father himself and one Ms E, a friend of the father’s. At the hearing on 17 January, I informed the father that Ms E’s affidavit appeared to go towards the substantive issues rather than the question for determination that day, namely, whether the mother should be granted leave to re-open her case. Accordingly, I declined to consider that affidavit until the preliminary question had been decided.
After lengthy submissions from the father and Counsel for the mother, I refused the Application for leave to re-open, holding that the evidence was of insufficient weight or relevance to warrant re-opening the proceedings. I delivered an ex tempore decision, the reasons for which will be published separately.
The Father’s Application
In his Application in a Case, the father seeks the following Orders:
1. That this matter be heard on short notice.
2. That both parties are to do all acts and things necessary to facilitate applications to the Federal Department of Foreign Affairs and Trade for Australian Passports to be issued for the children of the marriage, X born (omitted) and Y born (omitted) (“the children”).
3. That the father prepare the Passport Applications ready for the mother to countersign and bear all costs of and associated with said applications for the children.
4. That Order 4 of 04 May 2007, restraining each of the parties from removing or causing or permitting the removal of the children X (female) born (omitted) 2003 and Y (male) born (omitted) 2004 (“the children”) from the Commonwealth of Australia be discharged.
5. That the Australian Federal Police REMOVE the names of the children from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia AND the Court requests the assistance of the Australian Federal Police in the implementation of this order.
6. That the father be at liberty to approach the Registrar of the Court in accordance with s106A of Family Law Act 1975 (Cth) should the mother refuse or neglect to comply with Order 2 above.
7. Any further Order that this Honourable Court deems necessary.
The Application was accompanied by an affidavit of the father sworn on 4 December 2013.
The mother did not file a Response to the application in a Case. She filed an affidavit on the morning of the hearing. In paragraph 63 of her affidavit, under the heading Orders Sought, the mother states:
I respectfully seek the following orders:
1. That the Application for the matter to be heard at short notice be dismissed.
2. That the matter be adjourned to such further date as this Honourable Court may deem fit.
3. That the Applicant pay the Respondent’s costs to date.
Evidence
In his affidavit of 4 December 2013, the father deposes that his friends named Mr R and Ms E, who now live in (country omitted), offered to him that they would pay the children’s return airfares to (country omitted) so that the father and the children could stay with them at their home for a holiday during the period in January when the children would be in the father’s care.
The father annexed to his affidavit copies of email correspondence between the mother and himself, in which he sought her consent to the removal of the children’s names from the Watch List and the issue of passports to the children.
The mother’s email in reply, addressed to the Independent Children’s Lawyer and copied to the father, was dated 6 November 2013. The email states:
“Whether I can agree to Mr Hartnett’s demand (threatening to have the matter listed without notice) will depend on several things:
1(a) - that Mr Hartnett confirms that he has not mentioned the proposal of a trip to the children nor that he has spoken about this in front of the children;
(b) - that Mr Hartnett will ensure that the children are not made aware of the proposal until a decision is reached;
2 - that Mr Hartnett explain how I can trust his promise to allow the children to have contact with me when he has constantly for almost 3 years and apparently deliberately disregarded Order 6 requiring him to allow telephone contact when the children are in his care. I also note that Mr Hartnett has never offered any explanation for his failures whenever I have raised this issue in correspondence and in my Application filed on 5 February 2013;
3 – how can Mr Hartnett afford to pay for the proposed trip when he is in excess of $8900 in arrears regarding child support;
4 – Ditto – when he has claimed to the Child Support Agency that he is unemployed;
5 – how may I be sure that Mr Hartnett will be with the children at all times. As already mentioned, Mr Hartnett apparently went overseas recently and left the children with another person without advising me that he would be doing so…
6 – Mr Hartnett providing me with an itinerary and details of accommodation etc. covering the whole trip;[3]
[3] Affidavit of Mr Hartnett 3.12.2013 Annexure “C”
The father replied to that email with comments added to the mother’s email. Essentially, he stated that:
a)he would not discuss the proposed trip with the children;
b)the mother contacted the children regularly by way of Facetime and text by way of their devices;
c)Mr and Ms E had offered to pay the fares as a gift;
d)He has casual work and has a payment plan in place with the Child Support Agency to pay his arrears of child support;
e)The children have been left in the care of his mother when he has had to go away;
f)He planned to stay with the Ms E family at their home; other details would not be available until the children had passports and bookings could be made; and
g)He would apply to the Court for orders if the mother did not consent.[4]
[4] Ibid Annexure “D”
The father emailed the mother on 3 December 2013 advising her that, as she had not further responded to the proposal, he intended to commence proceedings.
The mother replied that same day, saying:
Having given your request very long and careful consideration I cannot agree to it.
I should also note that you are the one who had the children placed on the Border Alert List. The Orders were made in my absence during Family Court proceedings.[5]
[5] Affidavit of Mr Hartnett 4.12.2013 Annexure “F”
I will deal with the mother’s claim that the children’s names were placed on the Watch List in her absence at this stage, as it was raised more than once during proceedings. Mr Hartnett told the Court on 7 January:
…there was some concern from my legal representative that Ms Sampson may be, in fact, a flight risk. So the order was made. It was unopposed, and it wasn’t objected to by Ms Sampson’s legal representative, and the order was made.
The father tendered, without objection, a copy of the decision of Judicial Registrar Loughnan of May 2007, where his Honour said at [5]:
There is no consent but no objection to the watch list order, and I will make the order. I remind the parties to be vigilant about that order. Such an order can remain on the records of the Customs department and then one day the parties agree on overseas travel for the children and will find that the trip is frustrated by the fact of the watch list order.
With respect, it appears that his Honour’s words were prophetic. I note from the copy of the decision that the father appeared in person but the mother was represented by Mr Paul, of Paul & Paul, Lawyers, and the learned Judicial Registrar referred specifically to Mr Paul in paragraph [11] of the decision:
Mr Paul for the mother, says…
It is hardly the case that the children’s names were placed on the Watch List in some way behind the mother’s back.
The mother deposed in her affidavit that there was an inequality in the parties’ financial resources and that she would not be in a financial position to travel to (country omitted) “in case of any emergency”.[6] She further deposed that:
[6] Affidavit of Ms Sampson 9.1.2014 at paragraphs [5], [10]-[11]
a)She had spent the Christmas holiday time until 8 January with the children in (omitted);
b)She believed that the father had travelled to (country omitted) in October 2013;
c)The father had sent her an sms message on 13 June 2013 stating that he had suffered an incident which necessitated surgery the following day, so he asked her if she would care for the children;
d)On 16 December 2013 the father sent her a message saying that he had to go to the emergency at a hospital to have a foreign body removed from his eye and would she collect the children from school;
e)On neither of the above occasions did he reply to later messages asking about the outcome of his surgery;
f)The father has a nil assessment of weekly child support and a child support debt of $9,000.00;
g)The father works on a (occupation omitted);
h)The mother had met Ms E in 2003 but there had been no contact with her since she separated from the father in 2004;
i)She was not aware that her children were close to the Ms E children; and
j)The parties’ daughter X had complained to her about the behaviour of one of the Ms E children.
Paragraphs [18] to [26] of the mother’s affidavit, under the heading Concerns Arising Out of the 7 January 2014 Directions Hearing are disturbing, to the extent that I took the opportunity to question the mother’s Counsel about the intended purpose of those paragraphs. They are quoted in full:
18. I am extremely concerned and worried to have heard from my Counsel, Mr de Robillard that His Honour seemed annoyed when told that I was still on holidays in (omitted).
19. According to Mr de Robillard when told I was in (omitted) his Honour stated words to the effect and in an annoyed tone: “There is an airport and planes in (omitted)”.
20. When told that I had not prepared an affidavit his Honour is reported to have stated: “She’s had notice of this for some time and there are telephones in (omitted)”.
21. Similarly when told that Mr de Robillard had not managed to contact me around 10.30 am on 7 January 2014 and that I was probably travelling to Melbourne, His Honour is reported to have stated words to the effect: “Melbourne is only 125km away it should take her no more than an hour and a half”.
22. When told that I could not afford to fly and would be catching an overnight train his Honour is reported to have stated in a sarcastic manner: “I hope it is a fast train”.
23. Shortly after the matter had been heard on 7 January 2014 Mr de Robillard called my mobile number. I was driving to Melbourne with the children at the time. I had to pull over to speak to Mr de Robillard.
24. I am extremely concerned that his Honour’s statements reflect some sort of stance, unconscious or otherwise taken against me.
25. I did not intend in any way to show disrespect to his Honour by not attending the Directions Hearing and not filing any document prior to 7 January 2014.
26. I could not see how I could reply to an Application which lacked the most basic information such as the intended date of departure and return; the security which Mr Hartnett would provide for the timely return of the children for school, how Mr Hartnett would pay for the everyday expenses in (country omitted) or in cases of emergencies and similar.[7]
[7] Affidavit of Ms Sampson 9.1.2014 at [18]-[26]
The affidavit does not state in its jurat that it was either prepared or settled by the mother’s counsel, so the only inference that can be drawn is that the mother prepared it herself. A number of parts of the affidavit were the subject of successful objections as to their admissibility, and the text of the affidavit does not read as if it were prepared by a legal practitioner.
Nevertheless, Counsel for the mother did not indicate that those paragraphs were to be withdrawn or not to be read. It cannot be the case that he was unaware of the contents of those paragraphs, especially as all the information appeared to have come directly from him, as stated in paragraphs [18]-[23].
An examination of the transcript of the proceedings of 7 January 2014 shows that the statements attributed to me were highly inaccurate. The paragraphs concerned are entirely hearsay and are obviously of no evidentiary value whatsoever.
If this material is self-evidently of no evidentiary value, what would be the purpose of presenting this material to the Court as part of the mother’s case? There is no legitimate forensic purpose for doing so. If the mother intended by these paragraphs to “verbal” the Court into some appearance of bias, actual or apprehended, then an improper purpose become apparent.
Such an improper purpose would appear to be:
a)An attempt to coerce the Court into deciding the matter other than on the evidence;
b)An attempt to coerce me into disqualifying myself from further hearing the matter; or
c)An attempt to manufacture an appeal point in case of an unfavourable decision.
I was sufficiently concerned about these matters to inquire of Mr de Robillard, the mother’s Counsel, as to the purpose of this material, noting that he himself was the source of the inaccurate hearsay information. I called on him for an explanation, as I wished to give him the opportunity to present an explanation before deciding whether to refer the matter to the Office of the Legal Services Commissioner.
Mr de Robillard denied that there was any intention on his part to place improper pressure on the Court and said that it was not his intention to make any accusation of actual or apprehended bias. It is the case that when asked about an allegation of bias during the hearing on 9 January he said that such an allegation was not being made.
Whilst the material is highly unsatisfactory and should never have been put before the Court, I have decided not to refer the matter to the Office of the Legal Services Commissioner to investigate whether the facts warrant a finding of professional misconduct on the part of Counsel for the mother.
It remains, however, that the material in the affidavit shows the mother’s motives in a very bad light, and the only reasonable inference is that Counsel for the mother was putting that material before the Court on her instructions. Otherwise, it is difficult to see why a competent barrister would choose to bring before the Court material that was so obviously damaging to his own client’s case.
Each party was cross-examined.
The father said that he had travelled to (country omitted) in October 2013 at a time when the children were staying with their mother. He said that he had never gone overseas when the children were in his care. He may have to go interstate for a night for work, in which case he leaves the children in the care of his mother.
He denied that there was any purpose for his proposed trip with the children other than a holiday. He had previously travelled to (country omitted) in an attempt to find some (omitted) work (he works in the (omitted) industry).
The father also said that he had not made any booking for the children to travel because no booking could be made for the children without a passport. When asked when he was proposing to make an airline booking, he said he would not make a booking until he had passports for the children.
The father dismissed as “total supposition” the suggestion that children who attend school in (country omitted) would have to resume school the following week.
Despite the ruling by the Court that cross-examination would only be allowed for one hour, Counsel for the mother was in fact allowed to go slightly overtime in order to finish a line of questioning.
The mother was cross-examined by the father. She clearly found this to be a very confronting experience and chose to look directly at the Bench rather than look at her former husband. She appeared to be nervous of him.
The mother said that at some time in the future she would like to travel overseas, but certainly not at the present time. She said that she took no comfort from the fact that the Independent Children’s Lawyer had no position on the matter.
The mother said that the father’s explanation for a proposed trip to (country omitted) had not satisfied her. She described herself as “struggling” with the concept and had had some counselling from a person at (omitted) Hospital whom she has seen previously. She complained that the father’s emails to her were “barbed” and she did not feel relaxed or calm when she read his original email. It raised a lot of questions in her head.
The mother said that she was worried about what would happen if the children were not brought back to Australia. She does not trust the father.
The mother described behaviour by the parties’ daughter on a previous occasion when she had spent time in her father’s care, saying that she had shown signs of agitation by pulling some of her hair out. This apparently happened in 2012.
Submissions
Counsel for the mother forwarded a written submission in which he stated:
When Counsel for the Mother appeared for the Mother at the first mention of the matter, his Honour was heavily critical and sarcastic about the fact that the Mother had not filed an affidavit in reply and was not present in Court. His Honour refused to consider whether the matter should be heard urgently; having ruled that his Honour Judge Kemp had already determined that matter. With respect, the Mother disagrees…[8]
[8] Respondent’s Submissions at paragraph [15]
Mr de Robillard submitted that the Court supported the father’s contention “that the Mother had somehow caused delay to deprive the father of his opportunity of spending time with the children and the Ms E children in (country omitted).[9]
[9] Respondent’s submissions at [21]
Counsel for the mother denied that she was the prime cause of the delay in determining the matter.
It was further submitted that the father’s Application in a Case, which should have been Initiating Application, as the Orders sought are final orders, should have been dismissed on procedural grounds, because:
a)The father had not complied with mandatory provisions of the Family Law Rules 2004, including Rules 2.01, 4.30, 5.0, 5.01, and 7.04; and
b)The father has not filed a reply or sought any order in relation to the mother’s case.
It was further submitted that I had misdirected myself about the Family Law Rules 2004.
Mr de Robillard also submitted that the father chose not to cross-examine the Mother on her affidavit filed on “10th January 2014”, presumably referring to her affidavit filed on 9 January. He did, however, cross-examine her on the basis of her opposition to his Application.
Mr de Robillard submitted at paragraph 31 of his submission that:
It must also be noted that the ‘Airport Watch’ was put into place by the Father in the first place and some six years ago. There is no explanation why the Father had not sought to have the listing removed, nor why he had not previously sought the issue of passports for the children; given his asserted belief in the benefits of travel for his children.
As to the substantive issues, Counsel for the mother referred to the decision of the Full Court of the Family Court of Australia in Thomason & Malhotra[10] and Busch & O’Shea[11] in support of the proposition that the matter before the Court should be determined with the best interests of the children as the foremost consideration. This point was developed to encompass the following:
a)There are reasons why the mother has little trust in the father;
b)It is in the best interests of the children for the father’s child support payments not to be in arrears;
c)The father’s modus operandi seems to be to seduce the children through a glamorous lifestyle with him and ensuring that the children have a totally different lifestyle with their mother;
d)There is no evidence that the children would suffer harm should they not travel in January as proposed by the father; and
e)The mother should not be forced to consent to a proposal that is not in the children’s best interests.
[10] [2010] FamCAFC 85
[11] [2013] FamCA 461
The father submitted that the mother was not a witness of credit and had been found to be so in previous proceedings. He further submitted that there was no corroboration of the mother’s claim of the daughter’s hair-pulling behaviour of two years previously or of the children’s need for counselling before undertaking any overseas trip with him.
The father finalised his submission by stating at [40]:
Should the Court be in favour of the Father’s application, it seems that due to the intractable differences between the parties in this matter that the Court may wish to consider a series of mechanical orders in addition to those sought by the Father that will cover the place and time for the mother to sign the completed passport applications and for approval to be given for either of the parties to take the children out of the Commonwealth of Australia for the purposes of a holiday.
The Law to be Applied
Whilst it was not drawn to the Court’s attention by the parties, the decision of Kuebler & Kuebler[12] was followed by Fowler J in Busch & O’Shea[13], where his Honour said at [35]:
Whilst the case of Kuebler is a 1978 case, it has received Full Court approval in a number of cases subsequently (see for example B and B; Re Family Law Reform Act 1995 (1997) FLC 92-755; and Thomason & Malhotra [2010] FamCAFC 85); but, of course, it was a case which was decided before significant amendments to the Act. Those amendments would require the Court to consider, in addition and in an overarching way, the principles governing this case which are set out in the Family Law Act 1975 (Cth) (“the ACT”). In deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child’s best interests, the Court must consider certain matters under section 60CC. Those matters are the “primary considerations and the “additional considerations” set out in that section.
[12] (1978) FLC 90-434
[13] supra
His Honour also went on to note at [37] that the Court will also be guided by section 60B of the Act which sets out the objects of the part of Part VII of the Act, which deals with the child, and the principles underlying those objects.
With respect, his Honour’s decision accurately states the law and I propose to follow it.
Conclusions
The Application before the Court was intended to deal with the father’s wish to take the children out of Australia for a particular trip to the (country omitted) in the January school holidays this year. Whilst it appears that the opportunity for the children to take this trip with their father has been lost, as a result of the mother’s opposition, what the Court is required to decide is the more general questions of:
a)Whether the names of the children should remain on the Family Law Watch List maintained by the Australian Federal Police; and
b)Whether the children should be able to obtain Australian passports.
There was no specific application to take the children to the (country omitted) between any proposed dates. However, for the Court to consider the Application for the Orders sought by the father, it must follow that the Court must consider whether it is in the children’s best interests to allow one or other of their parents to take them out of Australia and undertake international travel in general terms.
It is the mother’s case that international travel would not be in the children’s best interests.
The father believes that a holiday with him, referring specifically to his proposed trip to stay with friends in (country omitted), would be in the children’s best interests.
Where children are the subject of parenting orders, as these children are, there are obligations placed on parties to the proceedings by s.65Y of the Family Law Act, which says:
(1) If a parenting order to which this Subdivision applies is in force, a person who was a party to the proceedings in which the order was made, or a person who is acting on behalf of, or at the request of, a party, must not take or send the child concerned from Australia to a place outside Australia except as permitted by subsection (2).
Penalty: Imprisonment for 3 years.
(2) Subsection (1) does not prohibit taking or sending the child from Australia to a place outside Australia if:
(a) it is done with the consent in writing (authenticated as prescribed) of each person in whose favour the order referred to in subsection (1) was made; or
(b) it is done in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the order referred to in subsection (1).
It is hard to see why it would not be in the children’s best interests for them to have a holiday in the (country omitted) with their father. True it is that the children would not suffer any harm if they did not travel to (country omitted), as the mother submits, but that is not the test to be applied.
The onus of establishing whether the orders sought in the Application should be made falls on the father. He is the Applicant and he must establish his case. The onus does not fall on the mother to prove that the orders should not be made, at least not until the father establishes a prima facie case that the orders sought are in the children’s best interests.
Whether the Application should be dismissed on procedural grounds
Counsel for the mother submitted that the Application should be dismissed on procedural grounds because:
a)The father had not complied with Rules 2.01, 4.30, 5.0, 5.01, 5.01A and 7.04 of the Family Law Rules 2004, and indeed, I had misdirected myself about the mandatory provisions of the Family Law Rules; and
b)The father did not file a Reply, nor did he seek any order in relation to the mother’s case.
The submission is misconceived. Not one of those Rules applies in this Court. The Rules that apply in this Court are the Federal Circuit Court Rules 2001, which commenced on 30 July 2001.
There was no need for the father to have filed a Reply, as there was nothing to reply to. The mother did not file a Response. She only filed an affidavit, in which all she opposed the Application being heard on short notice and sought an adjournment.
There is no basis for the application to be dismissed on procedural grounds.
International Travel
The mother takes issue with the father’s wish to take the children overseas, noting that he is in arrears of child support to the extent of either $8900.00 or $9000.00 (the mother has given both figures). It is the father’s case that he is paying off the arrears at the rate of $20.00 per week, with the consent of the Child Support Registrar.
It is not hard to see why the mother would be irked by the fact that the father’s child support payments are in arrears and he is only paying off the arrears at the rate of $20.00 per week. At that rate, it would take him more than 8 years to pay off the arrears. In addition, if the father is only paying $20.00 per week in child support, as appears to be the case, this will not go very far towards assisting the mother in supporting the children.
The Child Support (Assessment) Act 1989 (Cth) provides at s. 3(1) that the parents of a child have the primary duty to maintain the child. The Act also provides at s. 4(1) that the principal object of the Act is to ensure that children receive a proper level of financial support from their parents.
However, the submissions on behalf of the mother appear to misunderstand the father’s case. The father’s evidence is that Mr and Ms E have offered to fund the children to have a holiday with them in (country omitted). They are not offering to pay the father’s arrears of child support.
With respect, the matter of child support is irrelevant to this application.
It should be asked why the children’s names should remain on the Family Law Watch List maintained by the Australian Federal Police. It will not do for the mother to submit that it was on the application of the father that the children’s names were placed on the Watch List in 2007 and the father has not sought until now to have the listing removed, or to have passports issued to the children.
That submission does not establish any reason why the children’s names should remain on the Watch List. The fact that the father was the one who sought the names being placed on the Watch List in 2007 is entirely irrelevant. There is no limitation period, nor is there any estoppel that applies.
Children’s names should only be placed on the Watch List and remain on the list if there is a fear that they may be removed from Australia and not returned to a person in whose favour a parenting order has been made. There is no evidence that the mother is a flight risk with the children. If that were the case in 2007 when the matter was before Judicial Registrar Loughnan, there is no evidence to show that the mother is any sort of a flight risk now.
The mother expresses a fear that the father may not return the children to Australia if he is allowed to take them out of the country. This fear appears to be based on subjective grounds. The objective evidence is flimsy, at best. It amounts to the fact that the father has visited (country omitted) on other occasions and, on his evidence, has on one occasion sought (omitted) work. The only other piece of evidence is the mother’s claim that the father has failed to comply with current parenting orders. This is denied by the father and there is no corroboration of the mother’s claim that the father has contravened earlier orders.
In my view, there is no evidence that establishes that the father is likely to take the children out of Australia and not return them.
There is no justification for retaining the names of the children on the Family Law Watch List and I propose to order that their names should be removed.
Passports
The issue of Australian passports is governed by the provisions of the Australian Passports Act 2005 (Cth). The principal object of the Act is set out in s.3, which states:
The principal object of this Act is to provide for the issue and administration of Australian passports, to be used as evidence of identity and citizenship by Australian citizens who are travelling internationally.
There are restrictions placed on the issue of passports by subsection 11(1) of the Act:
(1) The Minister must not issue an Australian passport to a child unless:
(a) each person who has parental responsibility for the child consents to the child travelling internationally,; or
(b) an order of a court of the Commonwealth, a State or a Territory permits the child to travel internationally.
Paragraph (b) of subsection 11(4) explains what is meant by an order of a court:
(4) For the purposes of subsection (1), a reference to:
…
(b) an order of a court permitting a child to travel internationally includes a reference to an order permitting:
(i) the issue of an Australian passport to the child; or
(ii) contact outside Australia between the child and another person.
If these children are to be permitted to travel outside Australia with either parent, they will require passports. As I am of the view that the children should be permitted to travel internationally with one or other of their parents, I propose to make an order allowing them to have passports.
It appears to be unlikely that the mother will sign any passport application proffered by the father, noting her opposition that she has exhibited throughout this case. Counsel for the mother stated in his submission on her behalf that “Any claim that the Mother was the prime cause of the delay in determining the matter is denied”.
I am not persuaded that this is the case. It appears to be clear that, from the outset, when the father sent his original email to the mother asking her about his proposed trip to (country omitted) with the children, she has taken steps to obstruct and delay the matter, with a view to thwarting his plan.
The following matters support my view of the mother’s attitude:
a)The objections raised by the mother in her email to the Independent Children’s Lawyer of 6 November 2013;
b)Her failure to correspond further until the Application in a Case was filed;
c)The Notice to Produce which she completed on 31 December 2013, setting out 11 different categories of documents which she sought to have produced on 7 January 2013, most of which appeared to have no relevance at all;
d)The fact that her Counsel did not press any of the matters in the Notice to Produce at the hearing on 9 January, apart from the father’s passport which he produced as a result of a direction of the Court;
e)The flimsy nature of her case, relying on irrelevant matters or unsupported assertions; and
f)The Application to re-open proceedings, which was dismissed on 17 January 2014.
It now appears obvious that the mother has been successful in thwarting the father’s plan for a holiday with the children in (country omitted) this month, staying with friends at their home. This does not mean that the children’s names should remain on the Family Law Watch List or that they should not have passports.
I propose to make an order permitting the father to apply for passports for the children without the consent of the mother. I am not of the view that an Order under s.106A of the Family Law Act empowering the Registrar of the Court to sign a passport application in place of the mother is appropriate. In my view, s.106A applies to deeds or instruments, such as transfers or discharges of mortgage, rather than passport applications.
Proposals for Future Travel
If either parent proposes to take the children for a holiday outside Australia at some time in the future, that parent should give the other party at least four weeks’ notice of that proposed trip, providing the following information:
a)The dates and times of departure and return;
b)The means of transport and all details of the airline or shipping company with which the parent will be travelling with the children;
c)The intended destination;
d)Contact numbers and addresses for the children for the duration of the period when the children will be out of Australia; and
e)Flight numbers and times if the proposed travel is by air.
I have considered whether, once the children’s passports are issued, the father should be ordered to deliver the passports to the Court under the provisions of s.67ZD of the Act. I am not satisfied that there is any evidence of a threat that the father may remove the children from Australia permanently. There is always a possibility, but in my view the Court needs evidence that there is something more than a mere possibility in order to justify such an order. There is no such evidence.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 24 January 2014
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