Kilburn and Garnett

[2013] FCCA 2399

FEDERAL CIRCUIT COURT OF AUSTRALIA

KILBURN & GARNETT [2013] FCCA 2399

Catchwords:
FAMILY LAW – Application by (country omitted) national for parenting orders – mother and child resident in (country omitted) – whether Australian court is a clearly inappropriate forum – whether mother be restrained from leaving Australia – orders sought by father not in child’s best interests.

Legislation:  
Family Law Act 1975 (Cth)

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Henry v Henry (1996) 185 CLR 571

Applicant: MR KILBURN

Respondent: MS GARNETT

File Number: MLC 10865 of 2013

Judgment of: Judge Burchardt

Hearing date: 16 December 2013

Date of Last Submission: 16 December 2013

Delivered at: Melbourne

Delivered on: 16 December 2013

REPRESENTATION

The Applicant: In Person

Counsel for the Respondent: Ms Teicher

Solicitors for the Respondent: David Stagg Tonkin & Co

ORDERS

1. All extant applications be dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 10865 of 2013

MR KILBURN

Applicant

And

MS GARNETT

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. As with the other matter with which I have just dealt, this is a difficult matter in which I would have far preferred to have had more time to consider.  But in the end however poorly my reasoning may be expressed, I have come to a clear view.  By an Initiating Application filed on 12 December 2013, the applicant father seeks an interim order in the form of an Airport Watch List order and an order that the parties attend mediation.  As final orders he indicates that further particulars will be given at a later stage.  The matter has been abridged and brought on for hearing today. 

2. In his Affidavit filed in support of the Application, the father details a number of matters.  He deposes that he was born in (country omitted).  He is I think, 31 years old.  He is in good health and plans to live in Australia and is looking into visa options for his case and will see a migration lawyer today.  He studied (course omitted) in (country omitted).  The mother was born on (omitted) 1972 and works as a (occupation omitted), mainly in (country omitted), where she is a (occupation omitted). 

3. According to the affidavit, the parties met in April 2010, in (country omitted) and according to this, separation was September 2013, although in Court Mr Kilburn told me that it was September 2012. He says that separation took place because after the birth of their daughter and the related stress the parties did not get along.  He deposed that he had called the mother’s housekeeper in (country omitted), who told him that the respondent would arrive in Australia on 5 December 2013 and leave on 17 December 2013, and that the mother arrived on 5 December 2013. 

4. Essentially, he refers to the fact, as is the case, that (country omitted) is not a party to the Hague Convention, which creates obvious difficulties and goes on to say that if the child is removed from Australia, the respondent may never return.  He confirmed – and I quote:

   “As the Respondent lives and resides in (country omitted), she would have no reason to come back to Australia.  Since April 2013 the Respondent doesn’t let me have contact to the child already.”

5. He goes on to depose that if he remains in Australia, the mother might not return with the child.  He is concerned about the child’s health given where the child lives and complains, very understandably, of the lack of contact that he says he has undergone.

6. He goes on to depose that mediation would not be appropriate at this stage as the respondent is likely to leave Australia on 17 December and his affidavit goes on to detail what the father says was his involvement with the child’s life – and he says it was extensive – while the parties were together.  The above of course is a paraphrase, but it I think, gives the flavour of the materials.

7. The Response filed 16 December 2013 – in other words, today – seeks sole parental responsibility for the mother, the child live with the mother and that the father spend such time with the child – I should say X, who was born on (omitted) 2011 – with time spent on a supervised basis as nominated by the mother.  The mother’s Affidavit confirms the dates of birth of the parties and the child’s birth.  She deposes that she lives in (country omitted) and visits Melbourne regularly. 

8. She first went to (country omitted) in 2007 and has returned at least once a year for Christmas in Australia.  Actually, given the tenure of the affidavit as a whole, I think that may be an error.  It seems to me more accurate to say that she spends Christmases in Australia – spends blocks of time around Christmas in Australia and has been residing in (country omitted) as far as I can see from the materials certainly full time for some years.  X has been returned to Australia for necessary immunisations.  The mother’s family all live in Australia.  She has a house in Australia and other possessions. 

9. She says that her eventual intention is to return to Australia to live, but at the moment she is a full time (occupation omitted) in (country omitted) and has been quite successful, employing together with another person, over a dozen employees.  She is booked according to the affidavit, to return to (country omitted) with X on 30 December 2013.  She says she has no intention of hiding X in (country omitted), or hiding X from the applicant.  She says that the (omitted) business is successful and expanding, and that she has no reason to take X permanently away from Australia where she has very strong links. 

10. She deposes to the sort of difficulties that from her perspective, bedevilled this relationship from the time that she got pregnant onwards and she deposes relevantly to the fact that in April 2013, the father was deported from (country omitted).  She deposes that the applicant is not believed to have a current working permit in Australia but may be working illegally.  That is not a matter in respect of which I propose to make any further comment.  Otherwise, the affidavit is essentially responsive to the materials put by the father and mentions requests by the mother to have the father consent to equal shared parental responsibility and deposes to concerns about having being stalked by the father in (country omitted).

11. Before the Court, Mr Kilburn who is self-represented and to whom I endeavoured to explain the nature of the case as best I could – Mr Kilburn confirmed that separation was in September 2012, that he was deported from (country omitted) because essentially, he was working in breach of his visa.  He arrived in Australia on 25 November 2013 on a tourist visa and it is his goal to obtain a mediation with a view to obtaining access to his child.  He also asserted and filed some exhibits to support this thesis that the mother spends much longer in Australia – some four months per year – something that the mother denies. 

12. Counsel for the mother confirmed – on her instructions at least – the far shorter amount of time spent in Australia and confirmed that it is the current intention of the mother to leave on 30 December 2013.  Time she says would need to be supervised even if time were to occur.

13. That factual introduction needs to be considered in the light of the fact that the Court has an obvious preliminary issue as to whether the court should exercise jurisdiction.  It is common cause that the mother and X are Australian citizens and are both presently in Australia.  So in that sense, clearly the Court is possessed of jurisdiction should it wish to exercise it. 

14. The law in relation to these matters was originally propounded by the High Court in a case called Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. That decision has also been adopted in a family law context by the High Court in cases like Henry v Henry (1996) 185 CLR 571 and cases that have followed from that. Further and over and above that, one has to remember that the High Court has made it clear that all these sort of issues to do with what might be thought of as relocation and the like are bound first and last by the child’s best interests. I am unable to see that this is a case in which this Court the Australian Court is an appropriate forum to hear this matter.

15. In my view it is a clearly inappropriate forum which is the test as I understand it.  The reality is that the father is only in Australia on a tourist visa.  He hopes to change that but his hopes at this stage are wholly speculative.  It is not a small matter – as I know from my practice in the migration list – to change a tourist visa into anything else – other than of course an illegal overstay.  There is no reason to suppose that the father will have a long term life in Australia at least as things presently stand. 

16. The mother is presently resident for all effects and purposes in (country omitted).  Her child almost certainly at least at this stage would have the capacity to take (country omitted) citizenship, although I have heard that (country omitted) does not permit dual citizenship past a certain amount of time.  The mother is going to be living in (country omitted) for the foreseeable future, although at some point she will return to Australia she says. 

17. The matter is only before the Court because of the relatively enterprising or alternatively, opportunistic endeavour by the father to come to Australia and as it were, ambush the mother with this claim.  I emphasise however, that one should be very slow to criticise the father.  He desperately wants to see his child and he is scarcely to be criticised for taking such steps as he can to do so. 

18. But the fact is that this is a matter which if it should be fought out in any court, should be fought out in (country omitted).  After all, (country omitted) has laws relating to parenting.  This confronts the father with a further difficulty however, in as much as he has been deported from (country omitted) and may well struggle to get back there for some time.  The reality is he is likely to have left Australia long before this proceeding ever gets to trial as well.  It is a very difficult and unpleasant situation for him to be in. 

19. But even if I am wrong about all that on the materials as they stand, there is no way I would make an order compelling the mother to stay in Australia until such time as this matter is concluded.  The fact is that the mother lives and works in (country omitted) and has done for years.  She has a profitable business that is expanding there.  It is entirely natural and proper for her to desire to return there.  The fact is that insofar as there is some risk as it has been asserted that she will never return to Australia, it is clear that that is not so.

20. More to the point of course, when one considers the child’s best interests, it is clear the child has lived primarily with the mother for the whole of her life.  The mother is clearly the primary carer.  The father has been excluded by the (country omitted) authorities if by no one else from seeing her since March of this year.  Anything that impacts poorly on the mother’s circumstances is only going to impact equally poorly on those of the child.  There is no suggestion that I can see in the father’s material that the child is in any way not properly cared for by the mother, other than generalised assertions about the dangers and difficulties of (country omitted) which in my view, are well and truly controverted by the mother’s material in reply.

21. It would be utterly inappropriate in the child’s best interests to contemplate keeping her mother here in increasing penury and difficulty for the quite extended period of time it would take to try the matter.  So even if Australia was not a clearly inappropriate forum, these are not orders that I would be prepared to make.  This is not an easy matter and the judgment gives me no satisfaction, but it seems to me that in considering this matter and above all, the interests of the child and the proper application of the law to the circumstances which are very, very unusual, the only order I should make is that all extant applications should be dismissed and I will so order.  Thank you very much.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date:  26 February 2014