KABRA & SACHIN
[2019] FamCAFC 155
•12 September 2019
FAMILY COURT OF AUSTRALIA
| KABRA & SACHIN | [2019] FamCAFC 155 |
| FAMILY LAW – APPEAL – PARENTING – Where the father’s Amended Notice of Appeal did not contain identifiable and competent grounds of appeal – Where the father fell into the trap of simply looking to rerun his case in the Court below – Where the father failed to identify any appealable error made by the Magistrate and nor is error apparent – Where none of the complaints made by the father have merit – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) CLR 160 House v The King (1936) 55 CLR 499 Prantage & Prantage (2015) FamCAFC 145 Vakauta v Kelly (1989) 167 CLR 568 |
| APPELLANT: | Mr Kabra |
| RESPONDENT: | Ms Sachin |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Western Australia |
| FILE NUMBER: | PTW | 3451 | of | 2017 |
| APPEAL NUMBER: | WEA | 36 | of | 2018 |
| DATE DELIVERED: | 12 September 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 19 February 2019 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 26 September 2018 |
| LOWER COURT MNC: | [2018] FCWAM 128 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cohen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid Western Australia |
Order
The appeal be 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 Kabra & Sachin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WEA 36 of 2018
File Number: PTW 3451 of 2017
| Mr Kabra |
Appellant
And
| Ms Sachin |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By way of Amended Notice of Appeal filed on 14 January 2019, Mr Kabra (“the father”) appeals against certain of the final parenting orders made by Magistrate Tyson (as her Honour then was) on 26 October 2018 in relation to the parties’ only child X, born in 2010 (“the child”).
The orders being appealed against provide for Ms Sachin (“the mother”) to have sole parental responsibility for the child (albeit this order was made by consent), for the father’s regular time and school holiday time with the child, for the father’s communication with the child, and for the mother to provide the father with 28 days prior notice of any intention to change the child’s primary school. In addition, the father complains that the Magistrate failed to restrain the mother from taking the child to India except via Singapore, and failed to provide for make-up time.
The mother and the Independent Children’s Lawyer (“ICL”) both oppose the appeal.
At the directions hearing conducted by me on 20 December 2018 I made orders to prepare the matter for hearing. On that day I expressed my concern to the father that his Notice of Appeal, filed on 15 October 2018, contained mostly narrative and did not assist me in identifying what the grounds of the appeal were. Consequently, I made orders for the father to file and serve an Amended Notice of Appeal setting out proper grounds of appeal by the close of business on Monday 14 January 2019. The father did so, however, the Amended Notice of Appeal did not remedy the issues I identified in the first Notice of Appeal, and which I will discuss later in these reasons.
I also note that the father failed to serve either of his Notices of Appeal on the ICL.
I made further orders on 20 December 2018 for the father and the mother to file and serve written summaries of argument and any lists of authorities, and listed the appeal for hearing at 10:00am on Tuesday 19 February 2019.
On 14 February 2019, five days before the date of the hearing, the ICL filed a summary of argument and subsequently served that on the parties. I did not receive that summary of argument until the morning of the hearing. As Counsel explained at the hearing, it was only due to the mother serving the ICL with her appeal documents, and the father’s appeal documents on 5 February 2019 that the ICL became aware of the appeal proceedings, and then filed and served their submissions in advance of the hearing.
Due to the late filing of the ICL’s summary of argument, I made orders at the conclusion of the hearing for the father and the mother to file and serve any response to the ICL’s written submissions by 26 February 2019, and 5 March 2019 respectively.
I note that the father filed his response to the submissions of the ICL on 6 March 2019, eight days after the ordered time for filing, and the mother filed her submissions on 15 March 2019, 10 days after the due date for filing. Without being ordered to do so, the father then forwarded to the court a response to the mother’s submissions on 29 March 2019. This was received by the Appeals Registry, but not formally filed.
I am prepared to overlook the late filing of the father’s submissions and to receive them. Likewise, I will receive the mother’s submissions given that they were only filed late because of the father’s default. However, I will not receive the further submissions of the father; I made no order providing for them to be filed.
I indicate at this stage that although the submissions of the ICL were extremely helpful, the responding submissions filed by the parties were of no assistance to me in determining this appeal.
Brief Background
The father was born in India in 1976 and was aged 42 years at the time of the trial before the Magistrate.
The father is a professional and, at the time of the trial, was working as a Project Manager for a company based [overseas]. He has since resigned from this position and lives with his parents in Perth.
The mother was born in India in 1981 and was aged 36 years at the time of the hearing before the Magistrate. She is currently a full-time homemaker and parent, and lives in the former matrimonial home in Perth.
The parties were married in late 2003 in Perth, but they did not commence to live together until 1 May 2004, following a traditional Hindu ceremony in India in April 2004. Throughout the parties’ marriage they have travelled and lived in India, the Middle East and Perth.
In 2010 the child was born in Perth. He is currently nine years of age.
On the father’s case, the parties separated in February 2017. On the mother’s case, separation occurred in July 2016. However, this is not a dispute that has any relevance to the appeal.
The child remained in the mother’s primary care following separation, and spent time with the father around his work schedule.
Following separation, various allegations were raised by each of the parties in relation to risks to the child and family violence. This resulted in each party obtaining an interim Violence Restraining Order against the other. However, both restraining orders were subsequently resolved, by mutual conduct orders being put in place on 3 May 2018.
The parties were unable to agree on the parenting arrangements for the child and the matter was listed for final hearing to commence on 10 September 2018 before the Magistrate.
On the first day of the hearing, the parties, with the assistance of their counsel, were able to agree on the majority of the parenting issues between them. The parties provided to her Honour a Minute of Consent Orders, and her Honour at [7] indicated she was “…satisfied the agreed arrangements for [the child] were in his best interests and were supported by the available evidence”.
The remaining five issues the Magistrate was required to determine were as follows, as set out at [17]:
a)When [the child’s] time with the father should be increased and what that time should be;
b)What time [the child] should spend with [the father] during the school holidays;
c)The frequency of telephone, Skype or Facetime communication between [the child] and [the father];
d)Whether various injunctions should be made including restraining [the mother] from changing [the child’s] current primary school without the [father’s] written consent, and whether the [mother] should be restrained from having [the child’s] conversation with the [father] on speaker phone; and
e)The time in which the [mother] should be permitted to take [the child] to India in January 2019, and various incidental orders relating to the travel, including make-up time.
The parties agreed that given the narrow ambit of the matters in dispute, the matter was to proceed on the basis of submissions only, and cross-examination was not required of any party or witness, including the single expert (at [25]).
The Appeal
Given the absence of identifiable and competent grounds of appeal amongst the seven pages of narrative in the father’s Amended Notice of Appeal, and the lack of any assistance in that regard from the father’s written submissions which did little more than set out the history and the background of the relationship, and repeat his case below, the ICL helpfully submitted that the appeal can be seen to be founded on the following assertions:
a)The matter was heard by a Magistrate, and given the complexity of the matter, the trial should have been listed before a Judge;
b)The Appellant Father’s decision to enter in to the Minute of Consent Orders was made under duress (presumably from his solicitors), and as such, there has been a significant miscarriage of justice;
c)The trial Magistrate was biased or there was an apprehension of bias; and
d)The Independent Children’s Lawyer was biased or acted in a manner so as to reasonably create an apprehension of bias.
(Paragraph 19, ICL’s submissions filed 14 February 2019)
And that the appeal could be determined by addressing these assertions.
Certainly, they are assertions made by the father, and they need to be addressed where relevant, but it seems to me that in addition it is appropriate to consider, to the extent required, the complaints the father makes in respect of each order that he challenges.
Thus, I propose to initially address the assertions identified by the ICL, as follows.
a) The matter was heard by a Magistrate, and given the complexity of the matter, the trial should have been listed before a Judge
This has no merit, and it can be easily disposed of.
First, it has not been demonstrated that the Magistrate was not well qualified and able to hear this matter.
Secondly, the father does not identify the complexities or the allegations against him which would require the attention of a Judge.
Thirdly, the mere fact that the father does not agree with the orders made and the reasons for those orders, does not demonstrate that the Magistrate was not competent to hear and determine this matter.
b) The Appellant Father’s decision to enter in to the Minute of Consent Orders was made under duress (presumably from his solicitors), and as such, there has been a significant miscarriage of justice
This complaint also has no merit. No appealable error is demonstrated by this assertion.
In any event, the father fails to identify the nature of the duress, or who applied the duress, and provides no evidence of the duress.
It is also unexplained why the father is only challenging one of the orders made by consent, and not all of those orders, if he was in fact subject to duress in agreeing to the same.
c) The trial Magistrate was biased or there was an apprehension of bias
d) The Independent Children’s Lawyer was biased or acted in a manner so as to reasonably create an apprehension of bias
These assertions can be dealt with together, because, what the father actually asserts in his Amended Notice of Appeal, is that he had “suspicions” that the mother’s solicitor and the ICL were “colluding”, and the Magistrate’s decision was “biased” as a result.
However, the father provides no admissible evidence of this alleged collusion, only referring to a conference which was clearly confidential, and in any event, it is entirely unclear how, even if there was such collusion, that has led to bias by the Magistrate.
What seems to be more the case is that the father suggests that her Honour was biased because her Honour failed to take account of his affidavit material, relied more on the evidence of the mother, was influenced by the submissions of the ICL based on the report of the single expert witness, and failed to make the orders that he sought.
As will be seen when I address this issue later in these reasons, it is not the case that her Honour failed to take into account the father’s affidavit material. Further, given that there was no cross-examination at the request of the parties, it was open to the Magistrate to rely on the unchallenged report of the single expert witness, and the ICL’s recommendations based on that report. Further, bias is not demonstrated by a judicial officer failing to make orders sought by one of the parties (Prantage & Prantage (2015) FamCAFC 145 at [85]).
It is also not open to a litigant to seek to mount an appeal alleging bias where that complaint was not raised before the first instance judicial officer, and that is the case here (Vakauta v Kelly (1989) 167 CLR 568).
Accordingly these assertions have no merit.
I now turn to the specific complaints made by the father in relation to the orders that he challenges.
The Respondent [mother], have sole parental responsibility for the child, born in 2010 (“the child”), save and except in relation to decisions as to which high school the said child attends.
This was one of the consent orders made by the Magistrate, and importantly, it was made in the context of both parties and the ICL being represented by experienced counsel.
The father fails to identify any appealable error by her Honour in making this order by consent. As referred to above, the father makes a complaint of duress, but that cannot sound in error by the Magistrate.
In support of this challenge the father does seek to repeat the matters he relied on in seeking equal shared parental responsibility in his initial application, but that does not take the issue of error by the Magistrate any further.
It is also noteworthy that her Honour said this in relation to all of the orders sought to be made by consent:
7To the parties’ great credit, they were able to resolve a wide number of parenting issues and the Court was provided with a Minute of Consent Orders. As I indicated to the parties, I was satisfied the agreed arrangements for [the child] were in his best interests and were supported by the available evidence. I pronounced those orders by consent and they are set out in full at the conclusion of these reasons. In summary, the parents agreed [the child] would continue to live with his mother, and she would have sole parental responsibility for [him] other than for decisions in relation to which high school he attends, with the mother to notify the father of any major long-term decision, seek the father’s input and take it into account. In the absence of any agreement being reached by 1 June 2021 about which high school [the child] is to attend, the parties will attend mediation.
There is no basis here for the appeal to be allowed.
The time pursuant to order 6(b) be extended:
(a) to 12:00pm on Sunday in February 2019;
(b) to 6:00pm on Sunday from 30 June 2019; and
(c) to the commencement of school or in the event of a public holiday to 9:00am on Monday from 1 February 2020.
For the purpose of school holidays in April 2019 and each year thereafter:
(a) paragraph 6a is suspended; and
(b) the time in accordance with 6(b) is extended to 12:00pm on Wednesday, subject to the [father] confirming he is available to spend such time not less than 28 days prior to the commencement of school holidays.
These are orders about which there was a dispute between the parties, and to put them into context, orders 6(a) and 6(b) provided as follows:
6The child spend time with the [father] provided the [father] is in the Perth Metropolitan area, as follows:
(a)from after school Wednesday or 3:00pm in the event it is not a school day, until the commencement of school the following day, or 9:00am in the event it is not a school day; and
(b)each alternate weekend, from after school on the Friday or 3:00pm in the event it is not a school day until 5:00pm on Saturday.
However, again, no appealable error by her Honour is identified here.
All the father does is to set out the case he ran in the court below, and ask this Court to now make the orders that he sought. However, as explained to the father, that is not what an appeal is about; it is about establishing appealable error by the Magistrate, and to quote from the celebrated High Court decision of House v The King (1936) 55 CLR 499 at 505:
…It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.
It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. …
The father does look to identify what he says are factual errors made by her Honour, but he was not able to demonstrate that they are material in the sense that they resulted in her Honour making orders that are not justified on the whole of the evidence. In that context it is relevant to note what Kirby J said in the High Court decision of AMS v AIF (1999) CLR 160 at [150], namely:
…an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
(Footnotes omitted)
Finally, it is instructive in light of the father’s assertions to set out the reasons given by her Honour for making the order that she did, namely:
129I am satisfied it is in [the child’s] best interests and reasonably practicable for his time to be increased in accordance with the recommendations of the mother and the ICL. In my view, a gradual increase is more likely to enable [the child] to adjust to the new arrangements. [The single expert witness] considered and I accept that [the child’s] experiences in 2016 had unsettled him, destabilised his sense of security and likely stagnated his development. I consider it to be in the child’s best interests, consistent with the recommendations of the Expert, that [the child] remain in his mother’s care “to allow him to settle and rebuild his confidence in the world”, while spending regular time with his father. In my view, the conservative approach is more likely to enhance [the child’s] sense of well-being. I am concerned, given the instability [the child] has experienced to date, that to increase time in accordance with the pace proposed by the father, may risk destabilising him which cannot be in his interests.
130History demonstrates the father has not always been available to spend regular time with his son due to his work and travel commitments. On the father’s own case, he will be working away for two weeks out of every four. While it appears the transition to increased time is very gradual, it remains to be seen how much time [the child] actually spend with his father between now and then.
131I have concerns if [the child’s] time with his father is escalated too quickly, it may cause [the child] difficulties and that would not be in his best interests. I hold such concerns in the context of [the single expert witness’] findings that [the child] has a number of vulnerabilities, the father’s poor view of the mother, and the conflict [the child] has been exposed to. It is hoped the father will be able to prioritise spending regular time with his son, which is clearly in his best interests, and afford [the child] an opportunity to enjoy some sense of routine and stability, that has been lacking in recent times.
…
133While the orders I propose are more conservative than those sought by the father, in my view, the increase in [the child’s] time with his father needs to be managed in a gradual, incremental manner, to ensure it is a success. The conservative approach will, in my view, protect [the child] but also ensure the protection of his relationship with each of his parents. A successful relationship between [the child] and his parents must be the optimal outcome. I consider those arrangements to be in [the child’s] best interests and provide [the child] with an opportunity to spend increased time with his father, at an appropriate pace, taking into consideration the father’s availability.
I cannot discern any error by the Magistrate in those reasons.
The [father] communicate with the child by telephone, Facetime or Skype;
(a) when the [father] is in Perth each Tuesday and Thursday between 6:00pm and 6:30pm;
(b) when the [father] or the child are not in Perth, or not otherwise spending time together, on each Tuesday, Thursday and Saturday between 6:00pm and 6:30pm; and
as (sic) other times which may be agreed from time-to-time, with the [father] to initiate the call.
Once again, the father has fallen into the trap of simply looking to rerun his case below and fails to identify any appealable error by the Magistrate. That applies to both aspects of order 15.
Her Honour said this in relation to what telephone contact should occur:
139In my view, it is in [the child’s] best interests to have electronic communication with his father twice a week when his father is in Perth and he is spending time with him. However when the father is overseas or [the child] is away and not spending time with him, the communication should be three times a week. In my view, that will enable [the child] to maintain a meaningful relationship with his father, in combination with the physical time he spends with him.
140The agreed orders provide for [the child] to otherwise communicate with each parent in accordance with his wishes. As he gets older, he is more likely to be proactive and be able to initiate such additional contact, if he wishes. I am satisfied communication twice a week when the father is in Perth, is in [the child’s] best interests and will order accordingly for that to occur on each Tuesday and Thursday. When the father is overseas, the contact will also occur on each Saturday. In my view, such arrangements will provide regular contact between [the child] and his father.
And, this as to the use of a speaker phone:
150Both parents and [the single expert witness] describe [the child] as a chatty, articulate little boy. It is clear at times, the father has demonstrated a lack of insight into the impact of his comments on [the child]. For example, the distress and confusion he has caused his son, as illustrated by his comments about [the child’s cousin]. While the father disputes that he called [the child] a liar about the incident at [a park], on his own case, he could have handled the matter better. I also note [the single expert witness’] observations of the father’s reactions at times to comments [the child] made and her concerns about such reactions.
151In my view, it is appropriate for the mother to monitor [the child’s] calls with his father. I do not agree with the father’s submission that [the child] should be the one to terminate the calls if he is distressed. It is not appropriate for [the child] to be placed in that position, particularly given [the single expert witness’] report, about his vulnerabilities and his apparent anxiety to please each of his parents. I decline to make the injunction as sought by the father.
There is no appealable error by her Honour apparent from these reasons.
The [mother] is to provide to the [father], not less than 28 days’ notice in advance in writing, in the event she proposes to change the child’s primary school, and to otherwise comply with paragraph 3 above.
Her Honour’s reasons for making this order are as follows:
141The father seeks an injunction that the mother be restrained from changing the child’s current primary school without his prior written consent. He points to the parties’ agreement (sic) the decision as to what high school [the child] attends is to be agreed. He wishes to be involved in that major long-term decision. He values [the child’s] education and clearly is supportive of his son achieving his academic potential. Pursuant to the agreed orders, when in Perth, he will be collecting and returning [the child] from school. Where [the child] goes to school will impact on those arrangements.
142The mother and the ICL seek the mother be able to unilaterally change [the child’s] school without the father’s consent. The mother says she would not do so without providing the father at least 28 days’ notice. She does not have immediate plans to do so. The mother says there is a prospect in the future she may move houses if she cannot afford to retain the [Perth] property. If that occurs, she should be at liberty to make appropriate arrangements to put [the child] into a local primary school. The mother and the ICL refer to the poor relationship between the parties and the lack of ability to communicate.
143I am not satisfied the mother should be restrained by injunction from changing [the child’s] primary school without the father’s consent. The parties have agreed to an order the mother have sole parental responsibility on terms and conditions. [The child] will continue to live primarily with his mother. The parties’ poor relationship and lack of ability to communicate is not in dispute. Despite the father’ confidence that moving forward, that will improve, I am not convinced. History shows since separation a very high level of conflict and hostility between the parties. They have no capacity to co-parent and work co-operatively. I am satisfied the mother can be trusted to make appropriate decisions and arrangements for [the child’s] primary school education.
144The mother should be able to decide about what primary school [the child] attends, on the basis she is required to comply with the agreed orders to notify the father of the decision she intends to make, seek his comments, take them into account and then notify him of the decision.
145I consider such an order is the least likely to lead to further conflict between the parties and reduce the risk of further litigation, which is clearly in [the child’s] best interests.
The father says in his Amended Notice of Appeal at paragraph 33, that his challenge to this order is:
…based on three key factors; 1) the father’s consent necessary in which primary school [the child] attends as good quality education is vital to his future development; 2) to minimise disruption on location of handovers and spend time should the mother decide to move beyond a 10km radius where the father lives …; and 3) to ensure stability for [the child] to avoid frequent change of schools by simply giving notice to the father.
(As per original)
Once again though, these are arguments that the father put to her Honour during the trial, yet, as can be seen, her Honour rejected them. As can also be seen, her Honour’s reasons for making the orders sought by the mother and the ICL, rather than the orders sought by the father, are sound, given her Honour’s findings on the evidence, and no appealable error is either identified by the father, or is apparent.
That deals with the specific orders challenged by the father, but the father then complains of the failure by her Honour to make two orders sought by him, namely:
a)For the purposes of the overseas travel referred to in these orders, the mother be restrained by injunction and an injunction be granted restraining the mother from travelling to and from India by any transit location other than Singapore.
b)The child spend time with the father as make-up times on occasions to be agreed between the parties, and, failing agreement, the child to spend time with the father for one additional night in each intervening weekend, until such time as the make-up time has been extinguished.
As to a), this was an order made on an interim basis by Magistrate Martino on 20 December 2017, but not seen by her Honour as needing to be made in the same terms on a final basis.
Her Honour’s reasons for the orders that she did make, and for not making the injunction as sought by the father bear setting out in full, namely:
152The mother seeks to travel to India for 4 weeks with [the child] which the ICL supports. She has not been able to travel to India in the last 2 years. She wishes to be able to go for a month, to enable [the child] to spend quality time with his extended maternal family and [his cousin]. It is important [the child] have the opportunity to maintain those relationships. The ICL is supportive of the mother speaking with both [the child] and [his cousin] about [his cousin’s] parenthood, and considers that should be done when she is next in India.
153The father agrees to the mother travelling to India with [the child] but says it should be limited to 2 weeks only. If she is away for 2 weeks only, then he does not seek make-up time. However, if it is for 4 weeks, then he wants to ensure [the child] is not deprived of an opportunity to spend regular time with him.
154The father refers to the interim orders which prevent the mother transiting to India via Singapore. He remains concerned the mother is a flight risk: she has friends in [a country in the Middle East], which is not a signatory to the Hague Convention. He seeks the mother travel via Singapore; which is a Hague Convention Country on the basis if the mother did not comply with the orders, that it would be easier to locate [the child] and ultimately ensure his return.
155The mother and ICL oppose those orders. The mother says she is not a flight risk. She has travelled frequently during the marriage. She is now firmly based in Perth, where she wishes to remain. [The child] is settled in school and doing well. Pursuant to the orders made by consent, she will own her own home in Perth. She has agreed to orders for security. She does not wish to be restricted in terms of the available flights to India and where she transits through. She says this is yet another example of the father attempting to continue to control her and is indicative of his ongoing paranoia that she is in a relationship with someone in [the Middle East].
156I am not satisfied it is in [the child’s] best interests to dictate the mother’s travel route to India. I am not satisfied the mother is a flight risk. While the mother clearly has lived in both [the Middle East] and India with the father, I accept that her and [the child’s] life is now settled in Perth. The mother wishes to remain in Perth. She has agreed to orders for security, which should provide the father with comfort. I decline to make the injunction as sought by the father.
The orders that her Honour did make by consent and which provide security for the return of the child also bear setting out in full, namely:
International travel
32The parties are to do all acts and things necessary to renew and maintain a passport for the child.
33Any passports in the name of the child are to be held by the Family Court Registry when not in use.
34The child’s passport may be released by the Family Court Registry with the consent of both parties or an order of the Court.
35The child is permitted to travel with either parent as may be agreed from time to time, and such permission not to be unreasonably withheld, or as otherwise ordered by the Court.
36In the event either party travels with the child internationally or interstate, the travelling party is to provide the following:
(a)an itinerary setting out the accommodation and details of the addresses at which the child will be staying;
(b)a telephone number of the child to have telephone contact with the other parent; and
(c) a copy of the e-ticket showing the dates of travel and confirming the return flight.
37Each party has liberty to relist on 14 days’ notice with respect to international travel.
38Subject to the Respondent delivering up the security referred to in the (sic) paragraph 39 by no later than the close of the Registry on 30 December 2018, the Respondent be at liberty to remove the child from the Commonwealth of Australia for the purpose of a holiday in India, for a period 2 January 2019 to 30 January 2019.
39For the purpose of the overseas travel referred to in these orders:
(a)the [mother] be required to deliver up to the Family Court of Western Australia a duly executed and appropriately witness (sic) transfer in relation to any motor vehicle that she holds in Australia, with a value equal to or in excess of $15,000 and $5,000 cash, or alternatively a car and cash to the total amount of $20,000; and
(b)the [father] be required to deposit the sum of $20,000 with [the] Family Court of Western Australia.
40In the event that the child has not returned to the Commonwealth of Australia by the close of Registry within 2 days of the scheduled return date and provided the non-traveling parent can demonstrate that the travelling parent has wrongfully retained the said child, the non-travelling [parent] be at liberty to apply to the Family Court of Western Australia for the release of the said transfer documents and/or cash held by the Family Court of Western Australia.
41The transfer documents referred to above [in] paragraph 39 automatically revert to the lodging party following the child’s return to the Commonwealth of Australia and any monies paid to Legal Aid Western Australia be paid to the travelling party.
42In the event the [father] is in India during the period that the [mother] and the child are in India pursuant to paragraph 38, the [mother] facilitate contact between the [father] and the child.
Yet again, all the father does here is to restate the case that he ran before her Honour, without identifying any appealable error. Accordingly, there is no merit in this complaint.
In relation to b), I appreciate that it is becoming repetitive, but just as with the father’s other complaints, this is an attempt to rerun his argument below, without identifying any appealable error by the Magistrate.
Her Honour determined that no order for make-up time as sought by the father should be made, and her Honour’s reasons for that are as follows:
157I do not consider it to be in [the child’s] best interests to make any orders for make-up time. [The child] will be spending substantial and significant time with the father pursuant to the orders made by consent and the additional orders I propose to make.
158[The child] has maintained a close and loving relationship with his father, notwithstanding the long periods of time they have been apart. It is clear their relationship has been maintained.
159In my view, an order for make-up time is likely to lead to further conflict between the parties. I have already referred to the high level of conflict, lack of trust and co-operation. It is preferable for the existing arrangements to continue, as opposed to being interrupted by make-up time.
160The orders I propose provide for a gradual, incremental increase in [the child’s] time with his father. To provide for make-up time as sought by the father, would potentially involve [the child] spending one additional night each weekend with his father, prior to the time I consider appropriate and in his best interests.
161[The child’s] relationship with his father can be maintained, even if [the child] spends four weeks away with his mother, on the basis he has telephone, Skype or Facetime with his father. Pursuant to the orders I make, that will be three times each week when they are not spending time together. I am not satisfied that [the child’s] relationship with his father will suffer if make-up time is not provided. I decline to make any order for make-up time.
There is no appealable error here.
Under the heading “OTHER CONCERNS” the father sought to raise in his Amended Notice of Appeal a number of matters, but there is only one which I propose to address.
The father submits that her Honour “took a one-sided approach and supported the mother’s position on most matters without considering the evidence provided by the father”.
It is readily apparent from the record, including the transcript and her Honour’s reasons, that these claims are not accurate. Her Honour had before her all of the affidavits relied on by the parties (see [24]), and given that the parties agreed for the matter to proceed on the basis of submissions only, and no cross-examination of the parties or any of the witnesses was required, her Honour was at pains to indicate to the parties that she had “read and carefully considered the filed evidence” (at [26]). That her Honour did this is borne out in her Honour’s careful and comprehensive judgment. Plainly, the fact that her Honour made orders sought by the mother (and the ICL), rather than orders sought by the father, does not demonstrate that her Honour took a one-sided approach and/or failed to consider the father’s evidence. Indeed, the fact that the proceedings did not result in a more favourable outcome for the father, reflects the character and content of his case below, rather than any error in the approach taken by her Honour.
The father here also suggests that his complaint is borne out by her Honour’s apparent acceptance of the mother’s allegations of family violence, and her failure to recognise that some of those allegations could not be substantiated.
Her Honour did set out the mother’s allegations in this regard, and found that despite the father’s denial, there were “reasonable grounds to believe there had been family violence” (see [92]). However, her Honour found that there was no “current risk of ongoing family violence” (see [100]), and the issue of family violence played no part in her Honour’s decision, or in the framing of her Honour’s orders (e.g. see [121]). Thus again, there is no basis here to successfully challenge her Honour’s orders.
Conclusion
Having found that there is no merit in any of the assertions or complaints made by the father in relation to the orders made by her Honour that he challenges, as well as there being no error by her Honour in refusing to make the two orders sought by the father, the appeal must be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 September 2019.
Associate:
Date: 12 September 2019
0
2
1