Kai & Min
[2024] FedCFamC1A 6
•9 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kai & Min [2024] FedCFamC1A 6
Appeal from: Min & Kai [2023] FedCFamC2F 1014 Appeal number: NAA 244 of 2023 File number: MLC 4033 of 2023 Judgment of: CHRISTIE J Date of judgment: 9 February 2024 Catchwords: FAMILY LAW – APPEAL – Circumstances in which the parties’ child ought be permitted to travel internationally with either of the parties – Where an order was made for the appellant to own real property as her residence in Australia as a condition precedent to international travel with the child – Whether order was made ultra vires – Where there is no obvious, direct and logical connection between the order and the care, welfare or development of the child – Order set aside – Procedural fairness – Where the order appealed against was within the factual ambit of dispute as defined by the parties but the failure to seek the parties’ input was a denial of procedural fairness – Adequacy of reasons – Where the primary judge’s systematic cataloguing of matters as to risk with extensive reference to the evidence before her, cogently charted the pathway by which the decision was reached to make orders – Jones v Dunkel – Where there was a real controversy about the matters in respect of which no evidence was called and a Jones v Dunkel inference followed –– Where there was no explanation for the evidence being absent – Weight – Where the primary judge’s discretion did not miscarry and findings were not against the weight of the evidence – Appeal allowed in part – Re-exercise – No order made in place of the order set aside – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) s 60CC and s 64B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Jones and Dunkel (1959) 101 CLR 298; [1959] HCA 8
L v T (1999) FLC 92-875; [1999] FamCA 1699
Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 114
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85
Murdock & Madden [2011] FamCAFC 219
Oberlin& Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66
Robertson & Sento [2009] FamCAFC 49
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 77 Date of hearing: 19 January 2024 Place: Sydney Counsel for the Appellant: Ms Borger Solicitor for the Appellant: Leslie Family Law Counsel for the Respondent: Dr Ingleby Solicitor for the Respondent: Hope Earle Lawyers ORDERS
NAA 244 of 2023
MLC 4033 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KAI
Appellant
AND: MR MIN
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
9 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Appeal NAA244/2023 is allowed in part.
2.Order 4(e)(i) is set aside.
3.The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to Appeal NAA244/2023.
4.The respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to Appeal NAA244/2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kai & Min has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal against final parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 14 August 2023.
The proceedings before the primary judge related to the circumstances in which the parties’ six-year-old child ought be permitted to travel internationally with either of the parties.
The appellant mother sought that the orders of the primary judge be discharged and the matter be remitted for rehearing before a judge other than the primary judge.
The respondent father sought that the appeal be dismissed.
At the hearing of the appeal, I raised with counsel who appeared on behalf of the parties whether the facts in this case permitted an alternate approach to that posited by either party; namely if the appeal were allowed only in respect of either or both of Ground 1 and 2, then this Court re-exercise the discretion on this limited basis. For the reasons which are set out below, that is the approach which will be taken.
THE TRIAL
Paragraph 3 of the primary judge’s reasons accurately records the context in which the parenting dispute came before the Court:
3.The 2021 orders included an injunction restraining the parties from travelling overseas with [X] for two years. That injunction has now expired. The father seeks the injunction be extended, contending there is an unacceptable risk the mother will travel with [X] to [Country B] and not return her to Australia. The mother opposes the extension of the injunction, giving evidence she wishes for [X] to experience international travel, including initially to [Country C] and in the future, [Country D] and [Country B]. She does not yet have particular travel plans. The mother also seeks the 2021 orders governing the parties’ international travel with [X] be varied, to impose alternate conditions on both parents travelling overseas with [X].
At paragraph 10 the primary judge recorded:
10.In February 2018, during a series of discussions between the parties about their separation, the mother spoke of moving to [Country B] with [X]. She deposed she does not recall the specific discussions but upon recordings being produced by the father, did not deny they took place as recounted by him.
At paragraph 16 the primary judge summarised the matters which had caused the father to approach the Court for further orders relating to international travel:
16.The father became concerned about the risk of [X] being permanently removed from Australia, particularly because of the following events (in summary):
(a) In early 2022, the mother sold her motor vehicle and put her investment property on the market for sale. She did not inform the father she was doing so;
(b) In August 2022, the mother wrote to the father requesting [X]’s name be removed from the Watchlist within the timeframe provided in the 2021 orders, advising she intended to travel to [Country C] with [X] in April 2023;
(c) In early November 2022, the mother travelled interstate with [X] without informing the father of their travel. This was in contravention of the 2021 orders which provides the parents are at liberty to travel interstate with [X] conditional upon giving the other 28 days written notice of their intention to travel with [X] and specific travel information; and
(d)The mother’s parents, with whom the mother has a very close relationship, appeared to be living in or spending significant time in [Country B]. He was concerned from information available online that the mother’s father was working in [Country B].
After a contested hearing, the primary judge made orders and gave reasons which restricted international travel for a period of five years and thereafter, in the case of the mother’s travel with the child, imposed a series of conditions as a prerequisite to travel, including security and that the mother own a real property in Australia in which she resides.
THE APPEAL
The appellant advances six grounds of appeal.
Both Ground 1 and 2 are directed to the making of Order 4(e)(i). Ground 1 challenges the order as having been made without the appellant having been afforded procedural fairness and Ground 2 as the order having been made absent power. It makes sense, notwithstanding the entreaty to deal with grounds alleging procedural unfairness first, to deal with Ground 2 first since, if the order was made without power, then it is of no legal effect and the question as to whether it was also made in circumstances which were procedurally unfair is otiose.
Ground 2
Ground 2 asserts that the primary judge erred in making Order 4(e)(i) as that order was invalid having been made ultra vires: that is, the making of an order without any source of power.
Order 4(e) is expressed as follows:
4. Upon expiration of the injunction in order 3 [being a period of five years], each of the father and the mother be at liberty to travel with [X] outside of the Commonwealth of Australia on the following terms and conditions or as may otherwise be agreed by them in writing:
…
(e)In the case of the mother’s travel with [X], the father having received confirmation at least 14 days prior to travel:
(i) The mother is the registered proprietor of real estate in Australia which she occupies as her primary place of residence; and
(ii)Of the security payment made in accordance with order 5 [being in the sum of $500,000].
The appellant submits that Order 4(e)(i), is ultra vires, being outside the power to make a parenting order as contained in s 64B(2) of the Family Law Act 1975 (Cth) (“the Act”).
Section 64B of the Act provides:
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
However, a declaration or order under Subdivision E of Division 12 is not a parenting order.
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
(3) Without limiting paragraph (2)(c), the order may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child.
(4) The communication referred to in paragraph (2)(e) includes (but is not limited to) communication by:
(a) letter; and
(b) telephone, email or any other electronic means.
(4A) Without limiting paragraphs (2)(g) and (h), the parenting order may provide that the parties to the proceedings must consult with a family dispute resolution practitioner to assist with:
(a) resolving any dispute about the terms or operation of the order; or
(b) reaching agreement about changes to be made to the order.
(5) To the extent (if at all) that a parenting order deals with the matter mentioned in paragraph (2)(f), the order is a child maintenance order.
(6) For the purposes of this Act:
(a)a parenting order that provides that a child is to live with a person is made in favour of that person; and
(b) a parenting order that provides that a child is to spend time with a person is made in favour of that person; and
(c)a parenting order that provides that a child is t have communication with a person is made in favour of that person; and
(d)a parenting order that:
(i) allocates parental responsibility for a child to a person; or
(ii)provides that a person is to share parental responsibility for a child with another person;
is made in favour of that person.
(9) In this section:
this Act includes the applicable Rules of Court.
For the order to have been made within power, under s 64B of the Act, it would need to have been made pursuant to s 64B(2)(i) of the Act. I raised with both parties whether the injunctive power was an alternate source of power but am satisfied that given the detailed and thorough references to the Act in the primary judge’s reasons, the power which she purported to exercise was the power to make a parenting order.
The question then arises as to whether an order requiring the mother to own real property (being her residence) in Australia, as a condition precedent to travel with the child, is an order about an aspect of the child’s “care, welfare or development”.
The relevant factual context is as follows: the mother owned a piece of real property in Australia at the time of hearing but it was not her place of residence. The father sought to place caveats on property owned by the mother as a means of securing the return of the child in the event she was retained by the mother overseas. The mother gave evidence she intended to buy real property in Australia in which she intended to live with the child. The mother offered, as communicated by her counsel in final submissions, to provide her real property as security for her return of the child to Australia in the event of international travel with the child.
The primary judge’s order required the mother to either move into her investment property (thereby satisfying Order 4(e)(i)) or acquire another piece of real property as her residence in order to be permitted to remove the child from Australia at the expiration of the five-year period in which travel was prohibited.
The appellant contended that such an order could not be an order which related to the “care, welfare or development of the child” either because there was insufficient connection between the mother’s ownership of a property in which she lived and the child’s welfare or, in the alternative, because the burden which was imposed by an order requiring a person to acquire real estate fell outside the scope of s 64B(2)(i) of the Act.
In AMS v AIF (1999) 199 CLR 160, Gaudron J said at [87]:
Notwithstanding that the welfare jurisdiction is similar to the parens patriae jurisdiction and that that jurisdiction will support a wide variety of orders and orders of great width, it would be reading too much into a statute simply conferring jurisdiction with respect to the welfare of a child to read it as authorising any order that would promote the child's welfare. That would be to convert a jurisdiction designed to protect against risk into a jurisdiction to supervise parents and guardians in the exercise of their rights and responsibilities.
In L v T (1999) FLC 92-875, the Full Court was dealing with a challenge to a stand-alone order which required the mother’s attendance upon a psychiatrist. The Full Court stated at [57]:
…It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.
There, the Full Court did say at [60] that had the mother’s psychiatric treatment been ordered as a condition precedent to her contact with the child then it may well have been within power.
The requirement that the appellant own property was explicitly characterised by the primary judge as designed to demonstrate “ongoing ties with Australia” and distinct from the purpose of providing additional financial security.
It is accepted that a judge may impose conditions on a child’s overseas travel which are designed to ameliorate the risk of non-return or to provide for the child’s welfare in relation to proposed travel (for example, not to travel to countries the Department of Foreign Affairs and Trade travel advisories have classified with “do not travel” status).
Here, conditions on the mother’s travel with the child make it logistically or practically less likely that the mother will abandon the property which she owns – or leave it vulnerable to application by a left-behind father. However, for such conditions to be an order within power, they must deal with an aspect of the care, welfare or development of the child.
There is no obvious, direct and logical connection between the order and its operation and the care, welfare or development of the child.
There are a number of reasons why Order 4(e)(i) has insufficient connection with the child’s care, welfare or development. Firstly, the ownership of property per se is sufficient to demonstrate ongoing ties to Australia – it is difficult to understand why the mother’s occupation of the property in the circumstances of this case is material. Secondly, no parameters are placed on the ownership such as the amount of equity or the classification of property ownership. Finally, it imposes what may be regarded as a significant directive to the mother about the manner in which she deals with real estate with unknown and unknowable market forces and consequences such that it falls outside the parameters of what may be regarded as an order in respect of the care, welfare or development of the child. It is therefore an order made without power.
Ground 1
Ground 1 asserted:
The learned trial judge at first instance erred in failing to afford the Mother procedural fairness in making order 4(e)(i) imposing on her an obligation prior to any international travel with the child to be “the registered proprietor of real estate in Australia which she occupies as her primary places of residence” where no such order had been sought by either party or raised with them.
Given my conclusions about Ground 2, this ground is redundant. However, since the two grounds are, in effect, both complaints about the power and the process which lead to the making of the impugned order, I have considered Ground 1 briefly.
Order 3 of the primary judge’s orders restrained the appellant by injunction from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia for a period of five years from the date of the orders.
Order 4 specified minimum terms and conditions that would apply to either parent travelling with the child outside of Australia upon the expiration of the injunction in Order 3.
The father’s application sought the following orders relating to real property of the mother:
7.That in the event that the Mother fails to return to Australia with [X] on the day of the return flight as provided to the father in accordance with Order 9(b) of the Final Orders, the Mother consents to the Father lodging a caveat over the property situate at [E Street, Suburb F] (“the [Suburb F] property”) or any other property registered in the Mother’s name in Australia.
8.In the event the Mother sells the [Suburb F] property, the proceeds of sale are to be held in the Trust account of her solicitors, Leslie Family Law pending the acquisition of further property in Australia by the Mother.
In closing submissions, counsel who appeared on behalf of the mother submitted:
…the last point – and I know my time is almost at an end, the issue of security is – that she advances – the issue of security, putting up her home as security for – for security for her return, in the circumstances of the authorities, indicating that it provides a genuine basis to return, I would submit, your Honour, under those circumstances, that there is no significant risk that she will not return, so the making of any order as to surety should be proportionate to what I say is the absence of risk of a failure to return.
(Transcript 12 July 2023, p.97 lines 25–31)
In those circumstances the question which arises is whether the order which the primary judge made as a condition precedent to the mother’s travel with the child was within the ambit of the dispute as defined by the parties.
It is settled law that a trial judge is not bound by the proposals of the parties (U v U (2002) 211 CLR 238 (“U v U”) at [80]). However, it is accepted that it will be an error if the primary judge represents to the parties that a certain order is not in contemplation but then makes that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).
The authorities emphasise that the role of the primary judge as the judicial decision maker responsible for making a best interests determination may from time to time require that judge to look beyond the proposals of the parties, not in an “unfettered manner” but in the context of the evidence in the proceedings as a whole: see U v U.
Here, the father’s Application squarely raised the mother’s ownership of property (in the context of security) as being a matter about which he sought orders.
Similarly, the mother’s evidence was consistent with the conclusion that she intended to purchase property.
As the Full Court stated in Oberlin& Infeld (2021) 63 Fam LR 88 at [22]:
…the primary judge was not bound to conclude the case by selecting between the suites of orders propounded respectively by the parties and the ICL. Once they failed to reach a compromise, the paramount consideration in the litigation was the children’s best interests and the orders which were most suited to achieve that purpose were the product of the primary judge’s exercise of discretion, irrespective of the competing orders for which the parties and the ICL advocated. Orders are not vitiated merely because they do not match the orders devised by the parties or the ICL (U v U (2002) 211 CLR 238 at 284–285 and 263).
The order which the primary judge made was not as sought by the parties but was in keeping with the mother’s sworn evidence – she intended to buy a home – and the order made was, on its face, potentially less onerous than the mother’s proposal that her home be used as security. If the order was within the power of the primary judge to make then I am satisfied that all parties were squarely on notice that the primary judge was being invited to make orders concerning real property owned by the mother but not the making of an order which no party sought and which was beyond power. The ambit of the dispute as defined by the parties was one that would be resolved by orders being made which are within power. As discussed above, the precise order concerning real property which was ultimately made was ultra vires; it follows that its making in that form was also a denial of procedural fairness.
Having reached a conclusion about order 4(e)(i) it is necessary to consider the remaining grounds since the appellant appeals from all of the orders of the primary judge.
Ground 3
Ground 3 related to the adequacy of reasons and was particularised as the primary judge having made an error by “providing inadequate reasons as to the basis for order 3 restraining the child travelling internationally and for her name to be placed on the Family Law Watchlist for a period of five (5) years”.
The reasons for decision will be inadequate where the pathway leading to the conclusion is unclear. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court of the Family Court of Australia adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The primary judge made a number of findings which are unchallenged on appeal and plainly demonstrate the basis for her decision that there should be an order preventing travel by the child and that the order should operate for five years. These include those matters enumerated as risk in the reasons for judgment at [197] and in addition:
(a)The lack of any detailed proposal by the mother regarding X’s international travel;
(b)The open-endedness of the mother’s proposal;
(c)The lack of detail about the longevity of the mother’s employment connections in Australia; and
(d)The diminution in the risk of retention as X ages.
Each of these matters, systematically catalogued by the primary judge by extensive reference to the evidence before her, cogently chart the pathway by which the decision was reached to make orders restraining the child’s travel and support my conclusion that this ground is without merit.
Ground 4
Ground 4 asserted: “[t]he learned trial judge at first instance erred and her Honour’s discretion miscarried by making an inference against the [appellant] pursuant to the principles in Jones v Dunkel [1959] HCA 8 where there was ‘no gap in the evidence which need to be plugged’”.
The primary judge correctly set out the law at [101]:
The principle commonly expressed as the “rule in Jones v Dunkel” was summarised by the High Court in Kuhl v Zurich Financial Services Australia Pty Ltd follows (citations omitted):
… the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. … The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn… The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.
Contrary to the submissions of the appellant, the primary judge’s application of the principles in Jones and Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) in [102] appears to be entirely orthodox.
The appellant submits that it was unnecessary for the mother to file evidence by her parents since the parties were not significantly in issue about any matter relating to her parents and accordingly, she submits, there was no “gap in the evidence which needed to be plugged”: Graham & Squibb (2019) FLC 93-892 at [60]. That underplays the controversy between the parties which related to the grandfather’s health and its impact on his living arrangements, the question of the grandfather’s employment and any discussions which the mother may have had with her parents about her intentions both previously and currently. In any event, as noted correctly by the primary judge, the inference is only that the evidence would not have assisted the mother’s case and was open to the primary judge in this case.
In Murdock & Madden [2011] FamCAFC 219, the Full Court of the Family Court of Australia (as it was then known), discussing the Jones v Dunkel inference, said at [69]-[71]:
69.…But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
70. The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case. In any event, here it is by no means clear what evidence it is said the grandfather had to meet in the sense explained in Jones v Dunkel. There was evidence from which his Honour could have reached conclusions about relevant attitudes and the responsibilities of parenthood exhibited by the grandfather. The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
71. As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful…
(Emphasis in original)
The respondent had squarely placed in issue the connections of the mother and her family to Australia and the extent of their ongoing connections to Country B including an assertion that the paternal grandfather was in fact employed in Country B. Counsel at first instance was successful (in cross-examination) in undercutting the strength and asserted importance of the issue raised by the respondent. However, this does not explain the appellant’s absence of evidence from her parents and in turn does not, without more, cause the primary judge to fall into error by applying the principles in Jones v Dunkel.
I accept the submission of the appellant that the mother was not obliged to put on evidence which was unnecessary or just desirable. To that extent I reject the submission of the respondent to the effect that a party should file “motherhood” statements.
Where there are relevant facts which inform the decision about the risk (of retention) which are within the purview of a witness, a failure to call that witness may lead to a Jones and Dunkel inference, as occurred here and without error.
Challenges as to weight
Both Ground 5 and 6 are weight challenges.
Counsel for the appellant acknowledged the difficulty of appellate challenges which rely upon a contention that evidence has been afforded inappropriate weight. Only where the weight given to relevant matters is a failure in the exercise of discretion will an appeal be successful. The expression most usually associated with such challenges it that the primary judge’s decision must be “plainly wrong” and hence no proper exercise of judicial discretion: Gronow & Gronow (1979) 144 CLR 513 (“Gronow”).
Ground 5
In Ground 5, the appellant asserted that “the finding of risk made by the learned trial judge that the [appellant] would retain the child in [Country B] was against the weight of the evidence”.
In reaching the conclusion that there was a risk the appellant would retain the child in Country B, the primary judge made a number of findings including that the mother’s evidence did not satisfy her that the mother’s workplace ties in Australia had longevity. The primary judge concluded that it is was not in dispute that the mother had raised the possibility of moving to Country B to work during counselling in 2018. The evidence was that the mother is a permanent resident of Australia but not a citizen. Further, the primary judge found that the mother’s parents, while holding Australian permanent residence, spent, in the case of her father, late 2020 to mid-2023 and, in the case of her mother, early 2023 to mid-2023 in Country B. In addition, the maternal grandfather was in Country B at the time of hearing (mid- 2023) having left Australia the month prior. The maternal grandparents own property in Country B. The maternal grandfather’s health may see him spend more time (or remain) in Country B. The mother’s parents were not on affidavit in her case. The primary judge found that there was no evidence of current community connections adduced by the mother. Another significant matter to which the primary judge had regard was the level of conflict and acrimony between the parties as providing a potential motive for the mother to remain in Country B given “[Country B] is a place she feels she can receive care and feel safe”.
As against that evidence, the primary judge took into account that the mother owned an investment property in Australia and that the mother’s evidence was that the maternal grandfather needed to return to Australia by mid-2024 to meet the requirements for his permanent residence visa. Further, the maternal grandparents also own property in Australia.
The primary judge weighed the evidence which both supported and refuted the risk of retention case. It was open to the primary judge and not an error to assess those factors and ascribe weight to them in the manner she did and hence Ground 5 is not established.
Ground 6
Ground 6 was particularised as:
The learned trial judge at first instance erred and exercised her Honour’s discretion in a manner that was plainly wrong by placing too much weight on the recordings between the parties of conversations having taken place in February 2018 at and around the time of their separation.
In the trial, two recordings of conversations between the parties in 2018 became exhibits tendered jointly: Transcript 12 July 2023, p.91 line 43 to p.92 line 15. A typed transcript of the recordings was provided and the accuracy of same was not in dispute. The respondent’s evidence in chief at [20] of his affidavit deposed to the conversations that were comprised in the recordings.
The primary judge said at [51] of her reasons:
51.I listened to the tendered recordings. One (from 12 February 2018) ran for just over an hour and the other (from 18 February 2018) for almost 20 minutes. It is apparent from the recordings the conversations took place during the course of the parties’ regular family life, while they were attending to [X] who was then approximately one year old. The recordings reflect what I characterise as discussions about their relationship and separation, interspersed with domestic interactions and warm interactions with [X]. Whilst the parties at times sounded aggrieved and their voices occasionally elevated, the conversations were not heated and neither party sounded highly distressed. The recordings were consistent with the father’s evidence and the tendered transcript.
This ground is concerned with the weight which the trial judge attached to specific evidence. The law is clear – “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”: Gronow at 519.
The weight to be attached to evidence (such as the recordings) is a matter for the primary judge unless the appellant can demonstrate that the primary judge was “plainly wrong”: CDJ v VAJ (1998) 197 CLR 172 at 230-231 per Kirby J.
The primary judge acknowledged at [115] the appellant’s submissions about the weight which she contended ought be given to the recordings having regard to the context and the effluxion of time. The primary judge analysed the mother’s evidence about the conversations including the fact that the mother had conceded that she had discussed a move to live and work in Country B with the parties’ child after separation. Ultimately, the primary judge placed those conversations in the context of the mother having ongoing connections with Country B (through her parents), the fact that the mother was not a citizen of Country B at the time the recordings were made and the fact that the mother disavowed having intended to move with the child until confronted with the recordings. Even if another judicial officer would have afforded the recordings less weight, I cannot be satisfied that the primary judge’s discretion miscarried and accordingly find that this ground has not been established.
RE-EXERCISE
Section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides the appellate court with the power to “affirm, reverse or vary the judgment appealed from” or “give such judgment or make such orders as, in all the circumstances, it thinks fit, or refuse to make an order.” The question of whether it is appropriate to remit a matter for rehearing or re-exercise the discretion was the subject of discussion by the Full Court in Marcin & Marcin (2020) FLC 93-956:
161.In the face of established error, an order for the re-hearing of the dispute has been described as an order of last resort (CDJ at 199), though it is an order commonly made when circumstances have or are likely to have changed between the original hearing and the disposition of the appeal (Allesch at 183). Since the appeal is by way of rehearing, whether the proven appealable error is remedied by the re-exercise of discretion by the Full Court or by the re-hearing of the proceedings at first instance, the parties must be given the opportunity to adduce further evidence as to current circumstances (Allesch at 183, 192). The Full Court is ill-equipped to receive fresh controversial evidence and so, in that event, there would ordinarily be little realistic option but to remit the proceedings for re-hearing.
Given the nature of the error in this case, the parties agreed that it would lend itself to re-exercise and I agree. Neither party suggested further evidence was necessary or appropriate.
I approach the re-exercise on the basis that the appeal did not challenge the primary judge’s findings of fact.
The order requiring the mother to own her residence was explicitly not made as an order for security to ensure the return of the child to the jurisdiction or to provide funds to permit the father to apply to access resources to aid return in the event of a non-return. Rather, it was made as an order to provide reassurance to the father that the mother had continuing ties to the jurisdiction. Both the mother and the father approached the issue of orders relating to the mother’s real property as orders in respect of security. The father sought orders by way of a cash bond ($50,000) and orders which permitted him to lodge a caveat.
The trial judge ordered a bond of $100,000. In those circumstances I propose merely to allow the appeal in part and thereby discharge Order 4(e)(i) and not make an order in its place. The father retains the benefit of the five-year prohibition and the need for lodgement of a bond. On his own case, the child will be older and more easily able to communicate and express independent views.
I have explicitly considered whether discharging the individual clause impacts on the integrity of the orders or otherwise renders them contrary to the best interests of the child. I am satisfied that is not the case.
I am satisfied that the resulting orders are in the best interests of the child noting the most significant of the relevant matters in s 60CC of the Act, given the facts in this case, was the importance of a meaningful relationship with both parents, which is protected by mitigation of the risk of retention of the child overseas.
I have also considered the potential risk to the psychological welfare of the child if retained overseas and the effect on the child of being separated from the father if she were to be retained by the mother. A related issue is the practical difficulty and expense which would theoretically be occasioned if the child were retained.
It is also material for me to consider the evidence which established a positive relationship between the child and both parents and the evidence about each parties’ participation in decision making about the child and spending time with the child to date.
I accept that the order will in the medium term prevent opportunities for the child to travel to Country B and Country C where I accept that the cultural and family opportunities would be of value to the child but, on balance, the restrictions provide a safeguard given the importance of the child’s relationship with both parents and the age of the child.
COSTS
Both the appellant and respondent sought certificates in the event that the appeal was allowed.
Because I have concluded that Grounds 2 and 1 are established and the order appealed from was made without power, I consider that it is appropriate that both parties receive a costs certificate referrable to their costs of the appeal.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 9 February 2024
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