Horton & Horton (No.2)

[2007] FamCA 1085

FAMILY COURT OF AUSTRALIA

HORTON & HORTON (NO.2) [2007] FamCA 1085

FAMILY LAW – CHILDREN – Travel – Passport

Australian Passports Act 2005 (Cth)
Family Law Act 1975 (Cth)

H & M (15 May 1997, unreported, Ellis, Kay and Moore JJ)
Kuebler & Kuebler (1978) FLC 90-434
Re Attorney-General (Cth) & Others; Ex parte Skyring  (1996) 70 ALJR 321

APPLICANT: MR HORTON

RESPONDENT: MRS HORTON

INTERVENOR: DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 8005 of 1997

DATE DELIVERED: 22 August 2007

PLACE DELIVERED: Albury

JUDGMENT OF: Cronin J

HEARING DATE: 22 AUGUST 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Ms Lee, Croydons, Solicitors

COUNSEL FOR THE INTERVENOR: Mr G. Moore

SOLICITOR FOR THE INTERVENOR: Crown Solicitor’s Office

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms Wearne

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Aid New South Wales

Orders

1. That the further hearing of the application of the husband filed 13 March 2007 be adjourned to the next judicial sittings of the Court in Albury commencing on 19 November 2007 as a priority fixture subject to any unforeseen circumstance.

2. That the parties attend a pre-trial conference on 2 November 2007 at 9.30am to ensure that all matters are ready to proceed.

3. That the parties be at liberty to attend the pre-trial conference by telephone.

4. All parties file and serve any further application and affidavit upon which they intend to rely by 4.00pm on Tuesday 30 October 2007.

5. That a case guardian be appointed for the wife.

6. That the nominated case guardian be at first instance, the nominee of the solicitors for the wife subject to agreement with all other parties and failing agreement, to be determined by Justice Cronin at a mention at a time to be arranged with the Associate to Justice Cronin.

7. That the affidavit of the husband filed in court this day be struck out.

8. That paragraph 17 of the orders of Justice Bennett made on 31 August 2006 be suspended for the period from 4.00pm on 27 September 2007 until 4.00pm on 16 October 2007.

9. That the husband be permitted to take the child M out of the Commonwealth of Australia for the purposes of international travel only for the period referred to in paragraph 8 of these orders.

10. Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the Minister be at liberty to provide to the husband a passport in the name of the child without requiring the consent of the child’s mother.

11. That upon the return of the husband and M to Australia after the trip referred to in paragraphs 8 and 9 hereof, the husband immediately deliver up to the Registry Manager of the Albury Registry of this Court, the original passport to be held by the Court until further order.

12. That paragraphs 8 and 9 of these orders are conditional upon the husband providing to:

    (a)    the Independent Children’s Lawyer;

    (b)    the Director-General of the Department of Community Services; and

    (c)    the solicitor for the wife,

    by 4.00pm on 19 September 2007:

    i.a copy of the airline tickets for the husband and M;

    ii.an itinerary of all proposed places that M will be staying whilst in Thailand (noting that it is not specifically required that the husband provide the names of the hotels at which she will stay);

    iii.the address and telephone details of Mrs W in Thailand with a written direction to Mrs W for her to provide all information sought by the Independent Children’s Lawyer about the circumstances under which M will be staying with Mrs W.

13. Liberty to apply on short notice.

14. The application (Form 2) filed 6 July 2007 by the husband is otherwise dismissed.

15. That the reasons for judgment this day be transcribed and be made available to all parties.

16. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Horton & Horton is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ALBURY

FILE NUMBER: MLF 8005 of 1997

MR HORTON  

Applicant

And

MRS HORTON  

Respondent

REASONS FOR JUDGMENT

1. This matter comes to me in the circuit at Albury and I have just discussed with the parties the fact that I am not likely to be able to hear the substantive issue which is an application by the husband for a change of residence and effectively the discharge of orders made by Bennett J in August 2006.  I am dealing with a child, M, who was born in November 1995 and therefore she is almost 12.  In fact she will probably turn 12 at the next circuit of this Court which commences on 19 November.  I have indicated that I have sufficient knowledge of the matter and I am sufficiently concerned about what has been happening to indicate that I will give this case priority in the November circuit, subject to any other disasters that may occur. 

2. One of the problems, however, is that this case has had a number of mentions before me, before the Senior Registrar and, in February, before the Chief Justice. The Chief Justice dealt with an application by the husband on an interim application and recommended that he file a Form 1 application initiating proceedings and he ultimately did that in June. That is the application that will be heard ultimately, hopefully, in November. What I have been asked to deal with today involved a number of applications including one by the husband for what he described as compensation but in reality is a refund to him of costs he incurred in participating in the court proceedings, and I have indicated that that is a matter that I really cannot deal with at this stage and certainly should belong to the substantive proceedings. He also sought an order that the media be present and I have indicated to him that I have no control of that situation other than to remind everybody about s 121 of the Family Law Act 1975 (Cth) (“the Act”).

3. The other application I have had to deal with today relates to the appointment of a case guardian for the wife and unfortunately we do not have the capacity to make the nominated order today because no-one really knows who will be the person and whether that person will consent.  I have had an enormous amount of assistance from counsel for the Director-General, Mr Moore, who has told me that he has spoken to a Mr R from the Disability Advocacy and Complaint Service in South Australia.  Mr R is an executive member of a private organisation but which is Commonwealth funded by the Family and Community Services Department.  He is obviously subject to a board of governors and they will no doubt give some indication as to whether he should participate on behalf of the wife.

4. It seems clear on the evidence that I have read that the wife is incapable of giving instructions for the purposes of the proceedings and accordingly it is appropriate for me to make at least an order that she have a case guardian and I will make some procedural orders as to how that is to be implemented.  That then left one other issue, which is the question of the husband's application to effectively suspend the orders of Bennett J precluding M from travelling overseas.  The husband's affidavit was handed to me today.  Although he has had other material before me in relation to this issue, it seems that he really addressed this application in an affidavit today.  I indicated that I did not think the matters were sufficiently covered in that affidavit, as a result of which I have heard not only from the husband at the bar table but also invited him to give viva voce evidence, which he has done and on which he has been cross-examined.  I will turn to those facts in a moment but before doing so I want to indicate that I will come back to the affidavit that the husband has filed today.

5. It seems, on the evidence which has been subjected to limited cross-examination, that the husband proposes to travel to Thailand for the school holidays in late September or early October this year and wishes to add on a day either side of those holidays.  His proposal is that he will stay part-time with a Thai national, a Mrs W who lives alone for most of the time, although she is married to …  He apparently comes out to Thailand for some months of the year.  According to the husband, M knows Mrs W and has had some dealings with her in previous visits.  In addition to spending time with Mrs W, the husband proposes to travel in Thailand and spend time at either beaches or other places and live in hotels. On a previous occasion he rented accommodation.

6. It is clear on what I have read, including parts of Bennett J's judgment, that the husband is very familiar with the Thai area and has been there on a number of occasions.  He has told me today that he has had money saved for the purposes of this trip and thought that it was about $6000.  He proposes to acquire cheap airfares and hence the need to book the tickets early.  In response to a question by counsel for the Director-General, he indicated that he would provide the telephone number for Mrs W should that be required.  In respect of his lifestyle here in Australia of which M is a significant part now, the husband told me that he has an unencumbered home here and he has horses for which he is responsible.  By occupation he is a farmer.  His income, however, comes from the pension, but that seems to be supplemented by money that he receives from horse races. 

7. The evidence that assists me enormously in this case has come from Mr B.  Mr B, although it seems the husband was somewhat reticent about cooperating, at my request saw M and has provided what I think is a very objective and clear synopsis of not only M's views but probably what is also good for her in the future.  It is abundantly clear on what I have read that M is well settled in school and is progressing extremely well.  In fact the husband says that she is top of the grade.  It is also very clear he is very proud of her achievements.  That also seemed to come through what I read in the Bennett J judgment as well, although around the time of her Honour's having to deal with the case, there seemed to be some problems, but from what Mr B has said and what the husband has told me, those problems now seem to have been overcome.

8. Part of the reason why the husband wants to travel to Thailand is that he has had plans - and certainly had them before Bennett J - to remarry.  Those issues were canvassed apparently at length before Bennett J and on my reading of her Honour's judgment, the details about exactly what was going to happen in terms of the marriage were somewhat vague.  Mr B's affidavit, however, suggests that M is now familiar with the proposed wife, although she has not met her recently.  As I understand the picture, M last saw the proposed wife in about 2004, and in the life of a young girl like M, that is obviously a long time ago. 

9. However, there seems to have been some modern communication through the computer, including webcam, and M seems very positive about that relationship.  It is clear therefore that what the husband wants to do is to take M on a holiday.  Just exactly how the marriage fits into that I am not entirely sure, but I think in these circumstances it does not matter.  Mr B, sensibly in my view, cautions everyone about the impact on M of that new relationship, but that is a matter that I can examine in some detail if the matter is determined by me in November. 

10. This is not the first time that the husband has made the application to enable him to take M overseas.  The Chief Justice heard the husband in person on 23 February this year and her Honour then felt that it was inappropriate to suspend the overseas injunction on the basis that on the material that was set out in Bennett J's reasons there were many things of concern.  However, what seemed to ultimately assist the Chief Justice in her decision-making process was the fact that the husband acknowledged that M was doing well at school and he did not want to interfere with her last year of primary schooling.  That seems to be the position again today.  The husband told the Chief Justice that he would like to get a passport and have it available in case he wanted to take M but he had no present plans.  That situation now seems to have changed and the plans are quite clear. 

11. Ms Wearne, as the Independent Children's Lawyer, asked me to read various parts of the judgment of Bennett J and I have done that.  At paragraph 105 and 106 of her Honour's reasons she expressed some concern about what had occurred in March 2005 when the husband took M out of Australia without the knowledge of the wife and candidly admitted apparently before Bennett J that he did not tell her because he knew she would not agree.  His evidence at that time according to Bennett J was that he and M had a wonderful time, and her Honour expressed some concern about exactly what that all meant.  Her Honour indicated that it was a distraction from the problems within the marriage.

12. Bennett J went on in her reasons to indicate that one of the downsides of that trip was that M and her schooling suffered enormously.  Bennett J had the benefit of the evidence of the principal of the child’s Public School and her reasons for judgment indicated that prior to the separation, the wife was significantly involved in the education and M always completed her homework to a high standard but that subsequent to the trip, the situation had taken a turn for the worse.  However, that was a year ago, almost to the day, and the evidence I now have from Mr B and also from the husband seems to be a little different in that M is now progressing extremely well, she is a competitive young woman and wants to progress in her schooling.

13. The other important thing to comment on about what Bennett J was dealing with was that her Honour expressed a concern about the fact that not only was M absent for so long but that it had been done unilaterally by the husband.  This is, on my reckoning, at least the third time since I have been involved in the case that the husband has raised the issue of wanting to take M out of the country, and it has been made very clear to me that it is only for a holiday.  On that basis I think the situation that Bennett J was dealing with was somewhat different.

14. The legal principles associated with children travelling out of Australia have been very clearly set out in the various provisions of the Family Law Act 1975 (Cth) (“the Act”). Those provisions have been amended on a number of occasions but it seems to me that the Full Court's decision in Kuebler (1978) FLC 90-434 still holds good, regardless of the changes that have occurred in the legislation. What the Full Court there set out is that in respect of an application like that made by the husband, there are a number of matters that I need to take into account. They are the length of the proposed stay out of the jurisdiction, the bona fides of the application, the effect on the child of any deprivation of access to the other parent, any threats to the welfare of the child by the circumstances of the trip and the degree of satisfaction which the Court has that its view that the child would be returned would be honoured.

15. In this case I am satisfied that the proposed stay out of Australia is only for a holiday and I am satisfied that the husband is genuine in his desire for that purpose.  I am a little troubled about the marriage issue and it would seem to me that it might be more appropriate for the husband not to marry during that period of time but I certainly would not restrain him from doing so.  He has told me unequivocally that he has all of the paperwork in place and that he could, by giving 10 days' notice, marry in Thailand.  It seems to me that it might be far more important for him to spend time with his daughter having a holiday rather than becoming embroiled in another relationship whilst the turmoil of this case is still unresolved.  As I said, I am not going to stop the husband remarrying, but everyone might like to contemplate that I will have to look at this case again in November and one of the things that I want to have a look at is just what has been happening since the Bennett J orders, and that will include some of the issues relating to any proposed remarriage.

16. Another issue that I have to take into account is the effect on M of the deprivation of the relationship with her mother.  That is irrelevant in this case, having regard to two factors.  The first is that the period of time away is only going to be two weeks or thereabouts; the second is that, sad as it may be, the affidavit of Mr B makes it very clear what M's view is about any relationship with her mother, and whilst that is something that might change in time, it is clear that the current deprivation of a relationship with her mother does not seem to be having any adverse outward effect on her. 

17. The fourth issue relates to any concern about the welfare of the child.  The Department has had a significant involvement in this case and I again express my gratitude for the way in which they have endeavoured to go about their business in what is obviously a very difficult environment.  The Department has expressed the view that they have no concerns such that they would intervene and remove the child from the husband at this point in time, and Mr Moore has indicated that he has something which might be described as a watching brief in these proceedings.

18. That finally leaves me with the question of how satisfied I am that the husband  will honour his obligation to return to Australia, and certainly that involved bringing back M.  One of the dilemmas in a case like this is whether or not the particular country to which a party is travelling is a signatory to the Hague Convention.  Thailand, on my reading of the regulations, is not a convention country and as such, any further proceedings might be difficult but certainly not impossible.  However, I do not want to look on the negative side of things because I have the husband's sworn evidence that he proposes only to go for the holiday period because he does not want to interrupt M's schooling and more importantly he has farming obligations and an unencumbered home here. 

19. I am satisfied that he has the requisite financial resources to fund the trip to and from Thailand but I propose to permit the trip on the basis that he provides significant information to both Ms Wearne and to the Department in relation to where he will be - in other words, an itinerary - and that he provides a copy of the return airline tickets setting out the precise movements of M both to and from Thailand.  I also propose that he provides to Ms Wearne the precise details of the address of Mrs W and also her telephone number.  I propose to order that he direct Mrs W to answer any questions about the proposed trip, including about the period of time when M is to be with Mrs W, in answer to any question by the Independent Children's Lawyer.  I might indicate also that insofar as that lack of cooperation might arise once the husband is in Thailand, I would certainly take a very strong view about that when the matter comes back before me in November. 

20. In those circumstances I say that it is in the best interests of M for her to be able to travel for that limited period of time.  As I understand it, there is no passport at this stage, and I propose to make an order that the husband be at liberty to obtain a passport for M for that particular trip and that the passport be handed to the Registrar of this Court upon return from that trip.  It will be a matter for my determination in November as to what happens to that passport thereafter. 

1. Accordingly, I will make orders that I shall set out in some detail in a moment, but before I leave the subject, I earlier raised the question of the affidavit that the husband handed to me and served upon the other parties, although I understand that Ms Lee does not have a copy of that affidavit.  During the break, whilst I was considering what I was going to do, I had the opportunity to read that affidavit.  I propose to strike the affidavit out and I do so on the following basis.  In an unreported decision delivered on 15 May 1997, in a case called H &  M, Ellis, Kay and Moore JJ said this:

   The husband has utilised the opportunity in his written submissions to defame some judges of the court and certain practitioners who practice in the court.  The court has an inherent power to protect itself from an abuse of its process.  Inclusion of unnecessary, irrelevant, prolix and scandalous material ought not be tolerated.

2. The Full Court went on to say this:

   Bearing in mind the warning of Kirby J in Re Attorney-General of the Commonwealth and Others; ex parte Skyring (1996) 70 ALJR 321, in our view it is nonetheless not appropriate for this court to have to sit back and tolerate scurrilous and scandalous personal attacks on members of the court.

3. The warning that Kirby J gave in Skyring's case was as follows:

   It is always important to every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit.  Vigilance, and not impatience, are specially required where that person is not legally represented.

4. Combining what Kirby J said and what the Full Court said in H & M's case, I have been through the husband's affidavit, carefully looking for things that might be of assistance.  I did that, ironically enough, after I had already heard the evidence which I directed so that I could have some understanding of what the position was.  Quite frankly, the evidence that the husband gave me was far more helpful than anything that he said in his affidavit.  I appreciate and I repeat what the Chief Justice said in February, that the husband has a particular grievance about the way his case was determined, but that is not something that I can do anything about.  My focus in this case is on the primary issue of what is in the best interests of M. 

5. Some of the statements that the husband makes are particularly unhelpful to me.  His views about the parties, the litigant, the lawyers and her Honour Bennett J might be his personal views but they are not views that are of any assistance to me.  To allow them to be ventilated and to remain part of the court file seems to me to fit within the category of what the Full Court said in the sense that the Court was being provided with unnecessary, irrelevant, prolix and scandalous material.  On that basis I propose to strike out the affidavit because it fits within all of those four categories.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  17 September 2007