Millar and Oakley
[2017] FamCA 415
•9 June 2017
FAMILY COURT OF AUSTRALIA
| MILLAR & OAKLEY | [2017] FamCA 415 |
| FAMILY LAW – PRACTICE & PROCEDURE – Application for interim orders FAMILY LAW – INJUNCTION – Overseas legal proceedings |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Millar |
| RESPONDENT: | Mr Oakley |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 2195 | of | 2016 |
| DATE DELIVERED: | 9 June 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 7 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McLeod |
| SOLICITOR FOR THE APPLICANT: | Ebejer & Associates |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Elleray |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Taft Lawyers |
Orders
That insofar as the father sought interim orders in paragraph 5 of his affidavit filed 1 June 2017, that application is dismissed.
That the application in a case filed 6 February 2017 is dismissed.
That the application in a case filed 21 April 2017 is dismissed.
That until further order of this Court, the father is restrained by injunction from proceeding with, or prosecuting, any legal action in African Country B relating to the children X born … 2012 and Y born … 2014, relating to the determination of:
(a) where the said children live;
(b) with whom the children should live; and
(c)any restraint upon the mother and the children leaving Country B.
The father, including by his agents, is forthwith to do all things necessary and sign all consequential documents to:
(a)Authorise the removal of the mother and the children from any injunctive order in Country B to enable the mother and the children to depart that country to enable compliance with inter alia, paragraph [5] of the order of the Federal Circuit Court (of Australia) made on 14 November 2016; and
(b)Authorise the relevant Sudanese authorities to enable the departure of the mother and the children from Country B.
Paragraph [3] of the orders of the Federal Circuit Court made 16 May 2016 is discharged.
The mother’s proposed orders (1), (5), (8), (9), (10) and (11) of the application for interim orders filed 25 May 2017 are adjourned to a date to be fixed.
That both the mother and the father have leave to seek that any applications for further be listed on an urgent basis in the event that:
(a) The children are not returned to Australia forthwith;
(b) The father fails to comply with these orders; or
(c) The children do return to Australia.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
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 Millar & Oakley 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 MELBOURNE |
FILE NUMBER: MLC 2195 of 2016
| Ms Millar |
Applicant
And
| Mr Oakley |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
These interim proceedings relate to the parenting of two children X born in 2012 and Y born in 2014.
Even though there have been a number of court cases in the past and there would seem to be others pending, the first two issues that appeared to be requiring determination were:
Is Australia the clearly inappropriate forum for the determination of parenting orders relating to the two children?
Should a court order preventing the children’s father leaving Australia to go to Country B be discharged?
For the reasons that follow, the answers to those two questions are:
(a) No; and
(b) No.
But it must be said that those determinations have already previously been made and, to the extent that the father required their reconsideration, I would not alter the orders to which I refer below.
In addition to those issues, but agitated by the mother and the Independent Children’s Lawyer is a set of proposed orders to which I refer below. Although he did not specifically say so, I have inferred from the father position that he opposes the orders sought by the mother. For the reasons below, I propose to make the orders that commence these reasons.
The father of the two children is Mr Oakley. I shall refer to him in these reasons as “the father”. The mother of those children is Ms Millar and similarly, I shall refer to her as “the mother”.
The Court has had the benefit of an Independent Children’s Lawyer who advocated for the same orders as those of the mother.
The mother was represented by counsel whilst the father represented himself. At the conclusion of the proceedings, he apologised for his English but I found his skill level in articulating his position, very good. Indeed, in one of the various hearings to which I return below before Judge Burchardt, his Honour’s description of the husband was that “it would appear that the father is highly educated and has post graduate degrees, including a doctorate and possibly further qualifications after that”. I note that in an email to my chambers this day, the father signs off including his qualifications which appear to be a Doctorate of Philosophy.
Unfortunately for the father, I do not agree with his position not just because of the evidence as presented to the Court but also because of various orders and findings of the lower court (which remain unaffected because of the absence of any appeal) and the father’s own submissions before me. These reasons hopefully explain why.
Of the parents, the mother was described as unemployed. She is apparently 28 years of age. Her application described her as “ordinarily resident in Australia” and to the extent that she needed assistance with English, she averred that she did not need an interpreter.
The father is aged 43 years and described himself as having a job as a scientist. Importantly for the purposes of the immediate proceedings, he averred that he was an Australian citizen and domiciled in Australia. He too did not say he needed an interpreter.
The mother and the father married each other in 2010. Each was an adult then. Their final separation occurred on 25 September 2014. It matters not what occurred before then because the nature and extent of the various parental relationships will be examined in any future proceedings in whichever jurisdiction is so vested with the matter.
After separation, the father took the children to Country B and left them with his family. He then returned to Australia. The mother went to Country B and took possession of the children. A court there restrained her from departing with the children. There are assertions that the visa for the mother’s re-entry to Australia has been cancelled on the action of the father but I remain uncertain how that is possible and it matters not, because at this stage, it is common ground she is prohibited from leaving Country B on court orders which flow from applications of the father and other members of his family including his own mother who was in Australia and, for some time, cared for the children.
These facts have been drawn from documents provided by lawyers who were previously and/or now, are acting for the parties. The mother is represented by solicitors and the father had legal representation until recently.
As will become apparent, there was considerable litigation in the Federal Circuit Court before it was transferred to this Court presumably on the basis of the complexity of the proceedings.
It is disconcerting that this is not the first time the arguments raised by both parties have been canvassed before a court. Although not argued, there is a very strong suggestion here of the principle of res judicata. In other words, once the court has determined a matter, it should not have to do so again. Appeal provisions enable dissatisfied litigants to endeavour to address wrongs. In circumstances where orders are made “until further order’, the court has power to reconsider the position but the circumstances of it so doing must be limited to new or changed facts.
After hearing from all parties, the litigation history and the numerous orders of the lower court became more apparent than had appeared in the submissions before this Court. Unfortunately, that necessitates an examination of the litigation history.
On 10 May 2016 and at a time when the father was represented by counsel, Judge Burchardt made the following orders:
[5]That until further order each party…be and are hereby restrained by injunction from departing or attempting to depart the Commonwealth of Australia.
It is unclear from the court file whether any written reasons were given for that exercise of power but it is significant that, having been represented by a lawyer, the father did not appeal. He may not have needed to because the order was only made until further order and it would seem that he renewed his application at successive hearings to which I turn next.
On 16 May 2016, the case was again before Judge Burchardt; again, the father was represented by counsel. His Honour made the following relevant orders:
[2]Each of the father and the mother shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children to be delivered into the Commonwealth of Australia no later than 30 May 2016.
[3]Upon the children’s return to Australia the children live with the father at his residence…
His Honour gave extensive reasons for the orders made including referring to the law relating to interim children’s determinations. His Honour’s approach was, with respect, correct.
In respect of the father’s capacity to travel internationally and specifically to Country B, no suggestion appears in the Reasons to indicate that counsel for the father argued that the order restraining the father was not within power. Indeed, his Honour specifically mentioned his previous order in those Reasons and this time, went on to say that he had considered the basis upon which he could exercise that power. His Honour went further to make reference to what I consider the real starting point here which is that of the forum for the determination of the parenting issues. I repeat his Honour’s reasons in respect of both issues:
[11]The next issue that arises to my mind is the question of forum. Although not squarely raised by the father’s case, it is really implicit in his case either that the matter should proceed by way of proceedings in [Country B], which I am told have been commenced, or that, as it were, Australia be the place where the trial is heard, but with the children remaining in [Country B] until its end. That is really scarcely an engagement in a meaningful sense with Australia as a forum conveniens.
[12]Following the High Court’s decision in Voth v Manildra Flour Mills (1990) 171 CLR 538, the High Court held in Henry v Henry (1996) 185 CLR 571 that the methodology, so to speak, earlier espoused in Voth was applicable to Family Law proceedings. In other words, the test is whether Australia is a clearly inappropriate forum. In circumstances where the two parents are in Australia and the father, at least, is a citizen and the two children are Australian citizens and where, on the father’s material, their residence in [Country B] is intended to be temporary in any event, it is clearly immediately apparent that Australia is not clearly an inappropriate forum.
[13]That brings us to consideration of the court’s powers in circumstances such as these where the children are, in fact, overseas. In the relatively recent decision of the Full Court of the Family Court in Zanda v Zanda (2014) 293 FLR 1, the Full Court had a number of helpful things to say by way of guidance. At [54] the court said:
It is beyond doubt that the Act gives jurisdiction in relation to a child outside the Commonwealth of Australia.
[14]And having traversed the terms of section 69E of the Family Law Act 1975 the court went on to say at [56]:
It is further not in doubt that the Act gives power to make parenting orders in relation to children outside Australia and the court can, in appropriate circumstances, make orders that require a child to be brought to Australia (see section 65D(1)).
[15]The court continued – and I am reading through to the end of paragraph [58]:
Section 69E and the power to make parenting orders under s 65D(1) must now be applied in the light of Australia’s ratification of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (the Child Protection Convention). The implementation of the Child Protection Convention is by way of amendments to the Act, in particular Division 4 of Part XIIIAA.
However, as Lebanon is not a party to the Child Protection Convention and the otherwise limited circumstances in which a court can make orders in respect of a child in a non-Convention country do not apply in this case, the jurisdiction of the court under s 69E to make parenting orders remains an appropriate source of power.”
[16]The court also considered at [132] authorities relating to the power of the court to restrain a party from leaving Australia. The court said at [132]:
We must also observe that in his consideration of the authorities his Honour did not refer to the principal authority on this issue, Samson v Hart No. 10 (2007) FLC 93 350 in which the Full Court said that the power to make an injunction that directly affects a parent and the parent’s right of movement is not found in section 68B but rather in section 114(3).
His Honour went on to find on the question of forum:
[25]…as soon as the father found out that the mother had returned to Australia and was bringing proceedings, the children were taken to [Country B] for what was described as a holiday.
[26]In my view, both parents live in Australia. While the father says he may need to travel and the like for his work, he has not suggested that he intends to return to [Country B]. In my view, on an interim basis, it is quite clear that it is in the children’s best interests to be with their parents, whether the father primarily or the mother primarily, in Australia.
In concluding his views about the forum, his Honour, clearly finding against the father, said:
[28]So in an overarching way, it is clear to me that this Court should proceed to exercise its jurisdiction so far as it properly can. It is clearly in the children’s best interests that that be so. They are very young. They should be living with their parents. There is no suggestion that either parent does not love them. Certainly, the father is conceded to love the children by the mother. The father says the mother is not really engaged with the children, but she has been bashing the door of the Court down since the minute she got off the plane and it is reasonable to suppose that she also loves the children and wants to see them in those circumstances.
Insofar as his Honour determined that he had jurisdiction and power to grant the injunction to preclude the father from leaving Australia, having canvassed the evidence and submissions and making the appropriate discretionary assessment, his Honour said:
[25]There must be a very real risk that it is the father’s intention to leave the children in [Country B] on a more permanent basis.
In my view, absent an appeal, that is a significant finding that could only be disturbed if I was satisfied that there is new evidence since then to justify adopting a different view. I turn to the present evidence below.
Importantly, no appeal was raised by any party with respect to the orders explained by his Honour’s reasons. Additionally, when the current applications are considered, it is clear that the mother is endeavouring now to enforce the various orders. Before dealing with that, I observe that there were two other hearings after the one to which I have just referred.
On 10 June 2016, and again with the father present and represented by counsel, Judge Burchardt made the following orders:
[2]The mother be permitted to depart the Commonwealth of Australia.
It will be seen that his Honour anticipated that the children were to be brought back to Australia presumably by the mother and that they were to be living thereafter with the father. That much can be inferred from the order of 16 May. Thus, the order of 10 June was simply to clarify what was intended earlier. That is, the mother had to bring the children back within the jurisdiction of the Federal Circuit Court.
On 14 November 2016, Judge Burchardt made some more orders and in his Honour’s written reasons, he said:
[3]…The father seeks that the watch list restraint on his travel be removed so that he can return forthwith to [Country B] to agitate matters there.
[7]…The father points to the child neglect case which is said to be underway in [Country B], and also to the fact that a complaint has been made to the police about kidnapping which may attract a 15-year sentence if it is proven. Apparently a complaint has been made to the Attorney-General in [Country B]. The father is adamant that he would facilitate the children’s return to Australia, and that any delay is undesirable.
[10]…I remind everyone, and I said this in an earlier ruling, that this Court has no power to make orders designed to operate extraterritorially. Such orders infringe improperly upon the sovereignty of another state. …
(my emphasis is in bold)
Judge Burchardt went on to make orders of which the following are significant:
[2]until further order the children live with the mother.
[3]The wife (sic) be permitted to travel with the children…from [Country B] to Australia.
…
[5]The mother shall cause the children to be returned to the Commonwealth of Australia as soon as practicable.
…
[9]The mother is to have sole parental responsibility for the children until further order.
As can be seen, orders [2], [3] and [5] made clear that which seems to have already earlier been clear but they put the issue of where the children should be, beyond doubt. Why that was agitated is perplexing because of the history I have set out.
The father did not appeal against those orders.
On 31 January 2017, the proceedings were back before Judge Burchardt but this time, apart from an adjournment, no other orders appear to have been made. Notwithstanding that, his Honour published reasons indicating that he was aware of “multiple” proceedings in Country B and he had adjourned them previously to “see if any advance had been made”. Clearly none had. His Honour then made reference to the father’s application (which was implicit from his affidavit although there was no formal application).
As his Honour understood the father’s position, there was a complaint about the mother’s lawyers’ conduct, another application he made was seeking an order for “$10 million compensation” from the lawyers and further, that the court cancel the children’s passports. His Honour appropriately dealt with each of those matters and they are irrelevant for my purposes here.
However, the father also sought an order that he have “sole custody” of the children which his Honour noted “would require the children to be before the Court in Australia”. Leaving aside that such an observation is probably incorrect, the important thing to remember is that his Honour had already made a residence order on 14 November 2016. It is unclear to me whether the litigation history was again brought to his Honour’s attention by those appearing before him. In any event, his Honour declined to deal with that part of the father’s application.
However, what can be seen from his Honour’s reasoning is that he acknowledged that the “central point” of the father’s case was whether or not the prohibition on travel should be lifted (see Reasons [10]). His Honour went on to adjourn the proceedings in the hope that there would some evidence of what was going on in Country B and he said he was not helped by the “florid” accusations from the overseas lawyers. His Honour then said:
[13]...I am not at all persuaded that it is appropriate to lift the travel restriction that I put in place earlier…Nothing has changed since then, in my view, and I do not propose to lift that restriction.
I remain perplexed as to how much more his Honour could have allowed the parties and in particular the father, to pursue the same issues again. I agree entirely with his Honour that the question was whether, since the orders were first put in place, there was evidence that might justify an alteration of the orders in circumstances where there has been no appeal, and no challenge to the jurisdiction, or challenge to the power to make the order.
Having then arrived at 21 March 2017 without the matter advancing as he had hoped, Judge Burchardt transferred the matter to this Court.
It will be obvious that absent some submission as to the law (and there was none), it is incumbent on the parties who seek orders to show that the extant positions indicated by orders should be altered. To do otherwise encourages a plethora of unnecessary applications. Once the court has “spoken”, it has “quelled” the controversy. In my view, that happened here.
Thus, in June 2017, before this Court, two important facts must be made clear. First, there is a hearing pending in Country B on 15 June 2017. I am not entirely sure that I understand what the relevant court there is being asked to do (if anything) but according to counsel for the mother, his client is in Country B living with the two children in what he described as “a safe house” and participating in the proceedings in that country.
As part of that first point, it seems common ground that the mother is unable to leave Country B because of some form of injunctive order. The father says that he has lawyers in Country B who require his attendance there for the hearing on 15 June but the proceedings also involve other members of his family as applicants.
Secondly, the father maintains it is inappropriate that he has been separated from his children. It is trite to say that such a course is of the father’s own doing.
As it was before Judge Burchardt, any alteration of the extant orders is opposed by both the mother through her counsel, but also the Independent Children’s Lawyer, who each assert that on the basis of the father’s own statements in this court, if he was allowed to leave Australia, he would not return and nor would the children. Whilst that was not immediately apparent when I began the hearing, it became so when the various orders and Judgments of Judge Burchardt were followed.
Insofar as he submitted that Judge Burchardt’s perception of him was wrong, the father submitted that there was optimism for his return because he has been here for 17 years and is an Australian citizen (as are the two children).
There were three applications of the father before the Court. They were filed on 6 February 2017, 21 April 2017 and he pointed to an affidavit filed 1 June 2017 which he said set out the orders he wanted. It will be apparent that these applications are all seeking the same thing.
·The February application seeks:
·Urgent lifting of the travel ban;
·“close the case as the children and the biological mother are in another jurisdiction”;
·“full custody” of the children; and
·That the mother return the children to their grandmother.
The April application sought orders that:
·The court “cancel the temporary travel documents”;
·Lift the travel ban on the father;
·Investigate the “lawyers misconduct” (sic);
·Compensation for the way the case was handled;
·Cancel all previous orders.
The June affidavit sought orders that:
·The travel ban be lifted off the father “and the children”;
·Order the mother to return the children to the grandmother;
·(someone) pay him $2 million compensation;
·“comment” on lawyers misconduct
The evidence of the father was found in three affidavits. I do not intend to repeat the detail but a cursory examination will show that it is the same material as the father put before Judge Burchardt. I have been unable to find anything to indicate what circumstances have changed other than it is quite clear that a hearing of some type is listed in Country B in a few days’ time.
The father attached to his affidavit, a translation of what his Country B lawyers seem to say is the history of litigation in that country. The various lawsuits have numbers and the names of parties. It is clear regardless of which party is correct about Country B proceedings that there are other family members as plaintiffs but always the mother as a defendant. Inappropriately, the lawyer gave a narrative of what those proceedings were about rather than as I would have expected, an indication of:
·The relief sought;
·The jurisdiction of the court;
·The evidence relied upon; and
·From an expert perspective, what the law permits by way of relief.
It is important to observe that the letter put in evidence by the father is not any more than a translation presumably by an appropriately qualified person. As such, the original untranslated document is hardly what I would have expected from an advocate or legal practitioner. Be that as it may, I have little understanding of Country B cases other than that the proceedings are a mix of custody proceedings and criminal prosecutions.
I have already set out the Reasons of Judge Burchardt about the forum issue. I repeat what his Honour said as I set out above:
the test is whether Australia is a clearly inappropriate forum. In circumstances where the two parents are in Australia and the father, at least, is a citizen and the two children are Australian citizens and where, on the father’s material, their residence in [Country B] is intended to be temporary in any event, it is clearly immediately apparent that Australia is not clearly an inappropriate forum. (my emphasis is in the underlining)
The finding of Judge Burchardt and his expose of the law is something with which I agree. I support that finding although it would have been helpful to know whether the courts of Country B will then agree to refrain from involvement bearing in mind no forum application has been conducted there and the Australian Court has already determined the issue. Like his Honour, I am not telling another sovereign nation’s court its business, but rather pointing out that the Australian Court has, made the findings it has and on my examination of the evidence, I would agree with those orders.
There is no suggestion to me that the overseas court or judicial system is being asked to restrain the mother (or for that matter the father) from continuing with the Australian proceedings by way of an anti-suit injunction or relief of a similar nature.
As I earlier observed, many orders have been made even if only of an interim nature but at this stage they stand as the correct legal position in Australia relating to children who are Australian Citizens.
The second issue for the Court is whether on my analysis of the evidence, it supports the fears of the mother and the Independent Children’s Lawyer that the father would not return with the children if allowed to leave even if it is now asserted that he needs to attend the overseas court to participate in the proceedings. The dilemma with the father’s argument is that there is a finding that he would not return and if that occurred, it would render the proceedings here nugatory. Nothing in the father’s evidence would suggest that things have changed and I am not acting as judge of appeal in respect of the Federal Circuit Court orders.
In relation to the concerns expressed by Judge Burchardt about the nature of the allegations made by the overseas lawyers, I have presumed that the courts of Country B will, like Australian courts, control the practises of the legal profession as advocates and decide whether the Australian Court has been misled. Whether what this court, and the overseas court, has been told impacts upon any forum determination is not a matter about which I should comment.
In relation to the father’s complaints about the mother’s lawyers made to the lawyers’ regulatory body in Victoria, and I understand him to be also referring to the Independent Children’s Lawyer, I note that Judge Burchardt observed that the regulation of the profession was not a matter for him. I agree. The father says the Legal Services Commissioner told him that he needs some form of comment from the Court as to what, if any, role they should be following. I suspect that has not been said but to the extent that it needs saying, it is not the function of this Court to regulate how or why such a body fulfils its professional responsibilities.
One would hope that if the Court referred a legal practitioner to such a body, the usual investigation and determination by that body would follow. I make clear however that nothing I have read would suggest any professional impropriety by the lawyers in this case. It is easy for the father to make such assertions of impropriety in an emotional way but for the Court to take any action, evidence (rather than assertion or innuendo) would have to be its base. I cannot find that.
The father also asked the Court to make reports to some prosecution authority about “perjury” albeit that no specific reference has been made in his applications. Whilst the father may consider that the truth has not been told by at least the mother (and possibly others), the focus of the Court in a parenting application is on the future of the children. To the extent that after the evidence is comprehensively tested, such a finding might be made is an entirely different matter.
On this immediate interlocutory application, I cannot test the evidence. I was asked to determine the parties’ dispute on the written documents and on their submissions. Knowing the urgency of the forthcoming hearing in Country B, all agreed that I could make the orders and give written reasons later. I have done that but I consider it is important that, to the extent necessary, the courts in Country B should have written reasons why this Australian Court has adopted the position set out below.
Returning to the father’s various applications, I make the following findings:
·There is no evidentiary basis to “urgently” lift the travel ban as the orders of the Federal Circuit Court stand and the father should (as already ordered) co-operate with the return of the children;
·There is no basis to “close the case” because of Country B hearings on the extant finding that Australia is not the clearly inappropriate forum.
·There is no basis to make a “full custody” order when there are extant interim orders about which there are no apparent changes of circumstances;
·There is no basis to order that the mother return the children to their grandmother, as Judge Burchardt ordered that in Australia, the children on return, should live with their father. I interpolate here that the father’s obfuscation and non-compliance which will no doubt be again tested by the orders to which I return below. His approach would make me doubt as to whether that order in his favour could any longer be justified;
·Consistent with the position of the Federal Circuit Court orders, there is no evidence that would enable me to “cancel the temporary travel documents;” even if there was such a power;
·As discussed, there is no basis for this Court to investigate the “lawyers misconduct”;
·Nothing was drawn to my attention that would enable this Court to exercise a jurisdiction that would enable an order to be made for compensation in the sums of damages pursued for the way the case was handled; and
·As there is no evidence of a change of circumstances, there is no justification for the Court to “cancel all previous orders”.
The father’s application must fail.
The mother’s application sought that:
·The mother be able to renew expired passports without the father’s consent;
·The father be restrained by injunction from endeavouring to affect the freedom of movement of the mother and the children;
·The father sign documents necessary to remove the mother and children from the equivalent of the Australian “watch list” inunction and provide a consent to Country B authorities to allow the mother and children to leave Country B;
·The father pay the relevant airfares;
·Upon returning to Australia, the children live with the mother; and
·various other orders which are not immediately relevant because they are predicated on the mother’s return which I consider premature.
The evidence of the mother, provided in the form of an affidavit by her lawyer, attaches a copy of a statement by the mother. To another affidavit, was attached a memorandum of a lawyer for the mother who attended the Court in Country B. The latter statement is controversial (and it should not be for the reasons I earlier mentioned as it came from a lawyer involved in those proceedings) and as a consequence, I shall give it no weight.
The passport question has already been determined even if it related to some other period of time. Judge Burchardt made the relevant order.
There is little point in restraining the father from endeavouring to affect the opposite of what the Court has already ordered that he do. I see no point in doing more than repeating what has earlier been said by the lower court that these issues have been determined. The father has shown no indication of co-operating with the return of the children through the mother and his position of bringing them back is untenable having regard to the findings of the lower court. I am not aware of the father’s financial position and therefore unable to order the father to pay the airfares and there is the uncertain question of whether there is the requisite power to so order. That is a matter that can be reconsidered if the courts of Country B agree that the mother and the children should return and that Australia is the appropriate forum.
So too, there is no evidence that I could vary the order leaving the children with the father on return to Australia although I have already remarked about my concern of his ambivalence. His lack of co-operation with the orders I am about to make will give some insight as to what should happen to these children upon the eventual return.
Liberty should be granted to apply on short notice to give effect to the principal orders.
The mother’s application for interim orders otherwise is dismissed and she can make a further and proper application upon the court having jurisdiction to deal with the unresolved issues.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 June 2017.
Associate:
Date: 9 June 2017
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