MARSHMAN & BARIC

[2019] FamCA 880

FAMILY COURT OF AUSTRALIA

MARSHMAN & BARIC [2019] FamCA 880

FAMILY LAW – PRACTICE AND PROCEDURE – Where an oral application was made by the Applicant for leave to read and rely upon two affidavits filed the afternoon before the Hague Convention hearing was to commence – Where the form, relevance and context of the affidavits is not clear and where both were nevertheless filed outside of the time provided for in the trial directions – Where the oral application is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Where there is a discretion whether to allow cross-examination in Hague Convention matters – Where this is a different Hague Convention matter as both parents are present in Australia, are parties to the proceedings and the principal questions largely turn on evidence and credit – Where it is appropriate to allow cross-examination of these parties.

APPLICANT: Ms Marshman

RESPONDENT: Mr Baric

FILE NUMBER: BRC 2074 of 2019

DATE DELIVERED: 16 May 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Page QC

SOLICITOR FOR THE APPLICANT: Simpson Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Murphy

SOLICITOR FOR THE RESPONDENT: Barry Nilsson

Orders

1. That the applicant’s oral application to read and rely upon affidavits of Ms D and Kathleen Simpson filed 15 May 2019, 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 Marshman & Baric 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2074 of 2019

Ms Marshman

Applicant

And

Mr Baric

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Application for leave to read and rely upon affidavits

1. In this matter which is summarily described as a matter pursuant to the first Hague Convention, and is an application by the mother for the return of a child to the United States of America, which is listed for hearing before me today, the mother reads and relies upon a number of affidavits that have been filed by and on her behalf in the lead up to the hearing of today’s proceedings. In addition though, when the matter was called on this morning, the mother through her legal representatives, solicitor and Queen’s Counsel, has sought leave to read and rely upon two further affidavits, both of which were only filed at, in respect of the first one, 3.00 pm yesterday afternoon; and in respect of the second one, at 4.30 pm yesterday afternoon. 

2. The leave that is sought to rely upon these two affidavits that were filed late yesterday afternoon, is opposed by the father through his legal representatives, solicitor and counsel, Ms Murphy. The first of the affidavits that is sought to be relied upon purports to be an affidavit by a Ms D of an address in City G, United States of America, a place where the mother seeks to return to and to have the child returned to with her.  It is only just over a page and a half in length and is curious in its form in that it effectively includes questions that were obviously drafted into the affidavit by someone who drew it, and sent to the deponent for her to answer, after which she apparently has added in her answers to those questions. 

3. The evidence that is included in the first page at least simply sets up the fact that Ms D is a substitute teacher in a school in City G, she tutors students and has tertiary qualifications. She says that the subject child in these proceedings, C, is one such student who she was tutoring. As Ms Murphy for the father points out there is absolutely no dispute between the parties that before the child came to Australia in the first half of 2018, last year, he was attending elementary school in City G. The first seventeen paragraphs of the affidavit really do not seem to advance the matter very far at all in respect of anything that matters in the case that might be in dispute. Apart from the last paragraph which is a standard sign off paragraph, the second last and the third last paragraphs which are very short one sentence paragraphs, assert in the first instance, understanding on the part of the deponent that the boy was travelling to Australia to visit his father, and secondly, an expectation that she says she has of the child’s return to City G for his tutoring to continue. 

4. With all due respect, those matters do not really take the case of the mother very far in respect of what the disputed issues of return are, most particularly in respect to the second one, the important notion of an expectation of C returning, as Ms D in no way deposes to how, when and in what circumstances she gained that expectation. It does not really assist me in determining, what is being described as the most significant issue in this case, habitual residence.

5. I do not know whether, if I allowed the affidavit in, the witness would be required for cross-examination or her availability. In the circumstances, I do not intend to allow it into evidence.

6. The second one is an affidavit of a solicitor, Ms Kathleen Simpson, who is currently representing the mother and instructing Mr Page of Queen’s Counsel.  It is a very simple affidavit in respect to the parts that are deposed to in there by Ms Simpson. She says:

   I have been provided with various supporting documents from the Applicant in her support of her application.

   and

   Exhibited [hereto are] a copy of those documents. 

   Nothing more than that.      

7. I have had a quick look through the documents. Some of them relate to information or evidence that is already before the Court that is not in dispute, namely the fact that the mother and child travelled to Australia on a ticket that included return flights for them both on the same airline that they flew to Australia on (E Airline) via Melbourne to City F, USA Airport. That does not take the matter any further. Other documents appear to be obtained from the Australian government confirming the mother’s visa status. Others are pages and pages of what seem to be copies of text messages between whom is unclear, though if one reads them one can get some sort of idea. There are pages of photographs, the relevance of which I have no idea and some, as Ms Murphy pointed out in her submissions, are best described as unclear in the picture they are presenting, and the last few pages are documents that purport to be some sort of copies of signed agreements between the mother, the man she says she is married to in City G and a couple of other people, without any other information going to them.

8. Again, observing finally again that that is the affidavit that was filed at 4.23 pm yesterday afternoon, well outside and not in accordance with trial directions made in this matter on a couple of occasions, I do not intend to allow that affidavit in either.

Cross-examination

1. I observe that I have a discretion whether or not to allow cross-examination in Hague Convention matters and often Hague Convention matters are done summarily without cross-examination. I would observe that the usual practice pertains to when the application is brought by the Central Authority on behalf of what we describe as a “left behind parent”; that is, a parent who the Central Authority is effectively representing through their application, who remains in another country on some other part of the planet, and where cross-examination, if it was going to be done, would at best only be done over the telephone. 

2. Having said that, I have certainly conducted Hague cases where that has happened, but it is generally an exception rather than the rule. This is a different sort of Hague case where both the parties are actually in Australia and here before the Court. It is asserted by both sides, with some degree of merit from my reading of the material, that this case is one that turns principally on a determination of whether or not City G was the child’s habitual place of residence at a time when he was retained in Australia through the unilateral intercession of his father who caused him to be stopped at the barrier. The determination of that question of habitual residence, whether it remained City G in the United States or whether it had become Australia, turns a great deal on questions of evidence and matters of credibility. 

3. I consider that it is appropriate to allow cross-examination, at least of the principal parties in this matter.  If there is to be any cross-examination of any of the other witnesses I will expect application in respect of that at the relevant time.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 May 2019.

Associate:

Date:  23 May 2019