Millar & Oakley
[2016] FCCA 1283
•16 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILLAR & OAKLEY | [2016] FCCA 1283 |
| Catchwords: FAMILY LAW – Interim parenting dispute – children in (country omitted) – parents in Australia – whether father should be compelled to remain in Australia and cause children to be returned to Australia – whether Australia appropriate forum – orders made as sought by mother and Independent Children’s Lawyer. |
| Cases cited: Voth v Manildra Flour Mills (1990) 171 CLR 538 |
| Applicant: | MS MILLAR |
| Respondent: | MR OAKLEY |
| File Number: | MLC 2195 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 16 May 2016 |
| Date of Last Submission: | 16 May 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Ebejer |
| Solicitors for the Applicant: | Ebejer & Associates Lawyers |
| Counsel for the Respondent: | Ms Burt |
| Solicitors for the Respondent: | Souki Lawyers | |
| Counsel for the Independent Children’s Lawyer: | Mr Taghdir | |
| Solicitors for the Independent Children’s Lawyer: | Taft Lawyers |
ORDERS
Within 14 days the father advise the mother’s lawyer and the Independent Children’s Lawyer of the arrangements that have been made by him to secure the travel of X born (omitted) 2012 and Y born (omitted) 2014 (“the children”) to the Commonwealth of Australia including:
(a)The name of the person who will be travelling and accompanying the children;
(b)The flights proposed to be organised including departure time from (country omitted), arrival time at Melbourne, Australia and flight number and airline details;
(c)The full name, date of birth, passport number and other relevant information with respect of the accompanying adult.
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.
Upon the children’s return to Australia the children live with the father at his residence in (omitted), Victoria.
The children spend time with the mother as agreed between the parties or as deemed appropriate by the Court.
Upon the children returning to Australia, the Australian Federal Police notify the mother, the Independent Children’s Lawyer and the Court.
The matter be adjourned to this Court for mention before Judge Burchardt on 7 June 2016 at 9.30 am.
Liberty to apply is granted to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Millar & Oakley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2195 of 2016
| MS MILLAR |
Applicant
And
| MR OAKLEY |
Respondent
REASONS FOR JUDGMENT
Although this is an extraordinary case involving a number of features that certainly I have never encountered in my 10 years on the bench, it is still an interim hearing and I propose, therefore, to address the matter by reference to the statutory pathway as illuminated at paragraph 82 in the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346. There has been some subsequent statutory amendment but in my respectful view that is still the appropriate starting place.
First, I am required to identify the competing proposals of the parties. The mother, who is wholly supported by the Independent Children’s Lawyer, seeks that orders be made to compel the father to bring the two children with whom we are concerned back to Australia. It is implicit in that position that should the father fail to comply he would be coerced by the contempt path. The father resists any orders compelling him to return the children to Australia. He further resists the order presently in place and sought to be continued by the mother that he himself be restrained from departing Australia should he wish to do so.
There is a further issue as to whether the father should be compelled to provide a bond in the sum of some $50,000 to the mother to enable her to take such steps as may be necessary for her to prosecute her case either here and/or in (country omitted).
The issues in dispute in the interim hearing are multifarious. They go to who was the primary carer of the children during the relationship, whether the mother was in any event a competent carer, whether the father is a competent carer, whether it is in the children’s best interests to remain in (country omitted) at least until this set of proceedings and/or any set of proceedings in (country omitted) are completed.
There are issues as to whether there was family violence during the relationship. There are issues as to whether either or both sides have issued threats to the other and/or their supporters so to speak in the (nationality omitted) community which appears to have been quite engaged by this case, if I understand what I am told correctly. There are, however, a number of agreed or uncontested relevant facts. The first relevant facts are that the mother and father entered into an arranged marriage which was originally solemnised I think in (country omitted) and the mother ultimately, not without some difficulty, was able to obtain a spousal visa and come to Australia.
The two children X, born (omitted) 2012 and Y, born (omitted) 2014, were born in Australia. In (omitted) 2014 the parents and the children returned to (country omitted). There is a lot of dispute about exactly what occurred on that occasion but what is not in dispute is that the father returned to Australia with the children leaving the mother behind. This is an interim hearing and nothing I say represents a final concluded view of the facts but it would seem to me fairly clear on an interim basis that the father took steps to have the mother’s spousal visa cancelled and inter alia failed to inform the competent authorities of the existence of the children.
It seems equally clear on an interim basis that the visa would not have been cancelled had that information not been omitted. It took the mother until February 2016 to get back into Australia. There are competing stories told as to the extent to which she maintained as it were an interest in the children in the interim. She returned in February 2016 and lodged her proceedings in March. The father departed to (country omitted) with the children on 9 April. The children are presently living in (country omitted) with his mother and appear from what I have been told today, to be subject to some form of guardianship by the father’s brother a person who on the father’s material, is highly influential in the area in which he and I would infer the paternal grandmother actually live. I say that because of course that gives a colour to some of the materials filed in support of the father’s case.
The father has been restrained by court order made by me recently as to capacity to travel. He says that his employment may be at risk if he is not permitted to do so.
It is instantly apparent that in an interim hearing of this sort, it is inappropriate to apply the presumption as to equal shared parental responsibility. That is so clear I do not think I need to say anything more than that given the nature of the parties’ disputes and the circumstances of the case.
It therefore, becomes a matter of making such orders as are in the best interests of the children. At this point it is necessary as it were to take a step back. I will come to the parties’ materials in due course. But I would note that first, there has been no application at any stage by any party that this matter be transferred to the Family Court. It might on one view, be thought a case appropriate for the Family Court but given the urgency involved in the matter, I am not disposed of my own notion to transfer it and no party has asked me to do so.
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 omitted) 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 omitted) until its end. That is really scarcely an engagement in a meaningful sense with Australia as a forum conveniens.
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 omitted) is intended to be temporary in any event, it is clearly immediately apparent that Australia is not clearly an inappropriate forum.
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.”
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)).”
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.”
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)”.
I refer to without reading out, the subsequent consideration of earlier authorities which fleshed out as it were, that broad conclusion in that case.
So that is the legal framework if you will, against which I come to the parties’ materials. The mother as I indicated, filed her application on 15 March 2013, clearly as soon as she reasonably could after her arrival back in Australia and noting the obvious logistical difficulties that the matter would have had from her perspective.
Her affidavit in support set out a number of the matters with which I have dealt as agreed or contested and also I note that the father had been alerted by certainly late March to the fact that this application was likely to be underway. I note that in a letter from the father’s solicitors to the mother’s solicitors dated 4 May 2016 (annexure M2 to the mother’s affidavit affirmed 5 May 2016) it was stated, relevantly for these purposes:
“Our client says that he felt for his children who now were not only missing their mother, but also their grandmother who recently returned to (country omitted). So he organised a holiday for them to go and spend time with her, as they have become close and accustomed to her.”
In other words, at that stage – and this was obviously on instructions – the father’s solicitors were asserting on his behalf that the children had been taken to (country omitted) for a holiday because they missed their grandmother. It rather glossed over of course, the fact that the children were missing their mother, who was in Australia by that time. The father’s affidavit affirmed 9 May 2014 naturally enough traverses the matters raised by the mother’s affidavit material. I am not wallowing in the matters set out in the parties’ mutual allegations of family violence and the like. There is no means of assessing those in any very meaningful way at this stage.
But what I do note is that much of what the father has to say about the mother’s presumed incompetence as a parent is based on the allegedly independent assessment of one Ms F, a maternal child health nurse, whose note dated 23 June 2014 is annexed to both the father’s affidavits. But before I come to that I will go back a step because annexure 1 to the father’s first affidavit includes a written statement from the sponsor detailing the history of the marriage which as I understand it, is a document prepared in the context of the initial application for a spousal visa. What I take from that is it would appear that the father is highly educated and has post graduate degrees, including a (qualifications omitted) and possibly further qualifications after that.
The letter from Ms F is written in terms that on an interim basis, suggest to me that everything Ms F said was based solely upon what the father had told her. It does not give rise to any reasonable inference that she had actually had even one word of conversation with the mother. Thus while this material is critical of the mother, the way it is written suggests to me, in terms that spring out rather from the terms of the correspondence that it was material told by the father to her and which may be approached on the footing that it might be somewhat incomplete.
Against all this I am required to make such findings of fact as I properly can on the materials as they stand. It would seem to me that the relationship, on everybody’s version of it, between the parents was in difficulties in 2014. The net result of the visit to (country omitted) was that the mother was excised from the children’s lives, her visa was it would seem impaired. She had to reapply. It would seem – and I emphasise the qualification this is an interim finding only – it would seem that that owed much to the steps the father took and in particular, the failure to reveal the existence of the children in the way the matter was reported to the Department. But whether I am right or wrong in that regard is really by the by. The fact is the father took steps which unilaterally ended up with him having custody of the children in this country.
Perhaps unsurprisingly, given that he has a full-time position of some significance, he found it difficult to care for the children and I infer it was for that reason that his mother came on a one-year sponsored visa in 2015, departing in February 2016 back to the (country omitted). I am prepared to accept his assertion that the grandmother was the primary carer throughout that period. It is consistent with common sense.
What is equally clear is that as soon as the father found out that the mother had returned to Australia and was bringing proceedings, the children were taken to the (country omitted) for what was described as a holiday. It should be noticed that that position has become more nuanced and now appears to be that they will remain in (country omitted) while this proceeding is sorted out at the very least. There must be a very real risk that it is the father’s intention to leave the children in (country omitted) on a more permanent basis.
In these circumstances, the Court is presented with a stark dilemma. Either the Court must form the view that the proceedings should continue here and that it is in the children’s best interests that they be in Australia while the proceedings are conducted and take every step as is proper and available to it to compel that outcome or not. 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 the (country omitted). 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.
I note the photographs of the children in (country omitted) and they do seem on the face of the papers, to be content and there is no reason to suppose that the father’s family do not love them but they are not the children’s parents and it is for these purposes impossible to avoid the impression that the children were taken to the (country omitted) to remove them from the jurisdiction because these proceedings were instigated. No other explanation on an interim basis makes a lot of sense. Indeed, the submissions of the Independent Children’s Lawyer that the father’s assertions about his capacity to care for the children are thrown in doubt by the necessity of putting them with his own mother in my view have force.
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.
That brings me to the particular orders sought. I note that there is no serious dispute that the Court has power to make the father do things while he is in Australia and to stay here. His affidavit material does not begin to rise to a point where I would be satisfied that his employment is in jeopardy in the event that he is not permitted to travel at some point and I am going to move this matter in as accelerated a way that I can so that inhibitions on his travel are kept to a minimum in any event but I am certainly not minded to remove the watch-list order for him. Nor am I minded to remove it for anyone else. If we can get these children back to Australia they will stay here, in my view, till this curial controversy is completed.
The mother and the Independent Children’s Lawyer seek to coerce the father as I indicated earlier, by requiring him within 48 hours to take steps in effect to have the children returned. The father was it seems able to move the children to (country omitted) pretty quickly when he decided he wanted to do so but a period of 48 hours is manifestly insufficient. I am going to give the father 14 days to take the steps indicated in order 1 and there are a number of things that may be thought to be interrelated with that. First of all, it will enable him to find the funds he needs to do these things. Secondly, he can take further legal advice and consider his position. Third, should he be so advised, he may seek leave to appeal.
I am giving him time to do that because there is a very real prospect – and there is no way of obfuscating this – that if the father does not comply with order 1, he will go to jail for contempt and he would be likely to stay there until such time as he does comply. That is not an option that would be ruled out and it is a very serious option. It goes without saying that orders of this character are an enormous infringement of the father’s ordinary civil liberties. I fully accept that that is the case and I do not enter into the making of an order of this character in any way lightly or without reservation but as a matter of practical politics, if we are to have this case heard and properly heard in Australia as I am quite convinced it should be, this is the only real way in which the Court could compel this outcome to occur.
I am not minded to make order 2. The mother can do what she is so advised. I am particularly reluctant to make an order such as that one which might be thought in some way, implicitly to give authority to the wife to wave it at somebody in (country omitted), where it is none of my business to be interfering at all. Order 3 should be made but would obviously have to expand somewhat in terms of the timing to coalesce with order 1, as it will be. Order 3 would be renumbered as 2. I would say that would be by 30 May.
It is not apparent to me that there would be any such matters to be attended to but if there are they should be. Orders 4 and 5, which I will renumber 3 and 4, should be made in the terms in which they are sought. It is too early to contemplate a family report at this time. The Australian Federal Police should indeed notify the Court and the mother and the Independent Children’s Lawyer upon the children’s return, although assuming the father complies with the orders, that should not be problematic. That will be order 5. That brings me to the question of the surety or a bond.
There is simply not sufficient information for it to be proper for me to make an order in this character at this time. What I am going to do is bring the matter back in early June. By early June I expect the father to have put on material as to his financial circumstances. If he fails to do so he is likely to face adverse inferences being drawn but I am not prepared to make that order at this time. Plainly, he has a salary of some $87,000 as best the materials reveal it. Finding the net sum of $50,000 straight out of the blocks is just going to be impossible and unreasonably burdensome.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 30 May 2016
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