Montrose and Montrose
[2016] FamCAFC 92
•6 June 2016
FAMILY COURT OF AUSTRALIA
| MONTROSE & MONTROSE | [2016] FamCAFC 92 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal from interim parenting orders granting the mother permission to travel overseas with the child to China for the purpose of a holiday – Where there is no adequate explanation for the delay – Where there is no merit in the proposed appeal – Where the father was unable to demonstrate error on the part of the trial judge – Application dismissed – No order as to costs. |
| Family Law Rules 2004 (Cth) r 22.03 Convention on the Civil Aspects of International Child Abduction (25 October 1980) |
| Gallo v Dawson (1990) 93 ALR 479 House v R (1936) 55 CLR 499 |
| APPLICANT: | Mr Montrose |
| RESPONDENT: | Ms Montrose |
| FILE NUMBER: | BRC | 11449 | of | 2010 |
| APPEAL NUMBER: | NA | 32 | of | 2016 |
| DATE DELIVERED: | 6 June 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 6 June 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 February 2016 |
| LOWER COURT MNC: | [2016] FamCA 80 |
REPRESENTATION
| FOR THE APPELLANT: | Applicant appeared in person |
| FOR THE RESPONDENT: | Respondent appeared in person |
Orders
The Application in an Appeal filed 25 May 2016 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Montrose & Montrose has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 32 of 2016
File Number: BRC 11449 of 2010
| Mr Montrose |
Appellant
And
| Ms Montrose |
Respondent
REASONS FOR JUDGMENT
In an Application in an Appeal filed by Mr Montrose (“the father”) on 25 May 2016 he seeks that he be given permission to file a Notice of Appeal outside the time provided by the Family Law Rules 2004 (Cth) (“the Rules”).
The orders from which the father seeks to appeal were made on 18 February 2016. To comply with the Rules the appeal should have been filed on 17 March 2016.
The significance of the delay becomes apparent when reference is made to the orders made by Forrest J. The orders allowed Ms Montrose (“the mother”) to take the child, aged 14 years, to China for the June/July school holidays.
Background
The mother is Chinese, her family lives in China. She has lived in Australia since the marriage in 1998. The parties separated in 2010, the mother and child have since lived at Region E. The father provides no direct financial support but meets the fees for the child to attend a private school. It is agreed the child is doing very well at school.
The father has consistently refused permission for the child to travel to China, and consequently the child has never met her grandparents. Apparently they are unable to come to Australia and are in poor health.
Ultimately the judge decided that it was in the best interests of the child to go to China for the following reasons:
28.I am quite satisfied that it is in the interests of [sic] 14 year old the [sic] child, who has never visited the country of birth of her mother, but who speaks Mandarin and knows her extended maternal family, to travel to China for a short holiday with her mother to meet her maternal grandparents in person before they pass away. The mother’s proposal that it be for a three week period encompassing the coming June – July school holiday period this year is, in my view, a sensitive one having regard to the child’s schooling as well as the mother’s desire to have her daughter meet her parents and other family members before they get any older or pass away. I am satisfied that [sic] 14 year old the child could readily cope with three weeks away from her father whilst in her mother’s care in China.
29.The mother says that she will get the financial assistance of her parents to pay for the airfares, and her parents can afford to assist her as they are in receipt of reasonable pensions having retired from their teaching posts earlier in their lives. I accept that as correct.
30.I do accept as undisputed facts that the mother does not have employment, real property or family ties in Australia and that China is not a signatory to the 1980 Hague Convention. Of course, these are significant matters of fact when assessing the risk of the mother not returning the child to Australia at the end of the proposed travel. They are not, however, in themselves, determinative disqualifying factors in what is a discretionary exercise of determining whether or not the parenting order to be made is a proper one in the child’s best interests. Those factual matters are but matters to be considered in the process.
The judge accepted that the mother would return with the child from China.
Basis for the Application
In his affidavit filed 25 May 2016 the father attached the proposed Notice of Appeal. It is useful for the purpose of the possible merits of the appeal to recount the grounds:
1.His Honour Justic Forrester Errored in Issuing a passport of [the child] to [the mother] take [the child] to China in June July 2016.
2.There is no retrival process of [the child] from China. The same applies to Russia, China, Lebanon and other countrries. There many cases outstanding of such and we get to hear in media of recent eg Lebanon.
3.[The mother’s] Ammended Initiating Application Lodeged on 27th April 2016 and finally received in 2nd week of May 2016. This briging to the surface her intention of freely travelling and no Family Court watch list so able to persue her move to China with [the child] on a permanent basis.
4.[The mother] has substantial wealth in China with$2-300000 paid over 10 years to her mothers…account along with Family AB and other money and had $29000 in [the Australian bank account] on End June 2009 as well.
5.[The mother] has no ties in Australia and no career and no assets so no need or loss to stay. Her furniture is only basic and a few thousand dollars.
6.[The mother’s] parents in China pension be about $100USA per month. [The mother’s] Parents and [the mother] in China has free medical, Hospital, Dental, Accommodation and Free Education including for [the child].
7.Evidence in Bank Statements, being retrieved, of payments to [the mother] and Supeona of Centrelink of my direction of Family AB payment.
8.A report prepared by Dr [M] PHD, forensic psychologist and … University Lecturer. [The child] has had few interviews with and has confidence in and likes. [The child] not under the apprehension of having to support her mothers intensions, and horrific personal power control over [the child] and [the mother’s] plan of Trip with [the child] then absconding to China with [the child] permanently. This evidenced from Wiltshires material of Trip China and Relocation and in [the mother’s] own words in Ammended Initiating Application and other verbal and Chinese School and my Contravention Application.[The child] trying to get out of her mother intensions and if her mother find out, as in other reports stacked by courts for mother and for dollar making, opens up more and Dr [M], so long as her mother not find out and abuse [the child] mentally and old times physically. This still carries memory and [the child] when has stayed over with me a night has bad drems and chinese arguing with her mother and the usual 1-3am morning time.
9.It had been thought to just get [the mother] to visit a few times Dr [M] to assess her deeper intensions as so often like in Court a farce and wash over of face value rather than in depth analysis and assessment.
.10.Ticket in Chinese . Q is it just one way ticket paid for??? Has no day to day itinery of visit and contact details
(Errors as in original)
PRINCIPLES
It was explained to the husband during the hearing of his application that there are well-known principles for an extension of time, and although not an exhaustive list, they are often summarised as follows (see Gallo v Dawson (1990) 93 ALR 479 per McHugh J at 480-481):
·Whether there is an adequate explanation for the delay;
·Whether the proposed grounds of appeal have some merit; and
·That any prejudice to the respondent can be compensated by an order for costs.
The delay in filing the Notice of Appeal within the time allowed is explained as follows in the father’s affidavit, filed 25 May 2016:
3.The delay in lodging is I had wait on [the mother’s] Final Parenting orders in Ammended Initiating Application being received in early May, with court stamp 27 April 2016.
4.I also having to retrieve Material from Boxes of Bank Statements showing the amount of money [the mother] has been paid and and transfers to her mothers bank account in Bank of China …
…
6.I have an updated report from Dr [M] PHD clinical Health and forensic psychologist and … University Lecturer of ... Annexured DMRM 4.
(Errors as in original)
In reviewing the mother’s Amended Initiating Application filed 27 April 2016, it is difficult to understand the father’s complaint. The Application merely seeks various interim and final orders relevant to the parenting of the child, and some financial matters, and in particular seeks orders similar to those granted by Forrest J. Namely, the mother sought permission to be able to travel with the child for holidays, including overseas without restriction. In oral submissions, the father submits that the application demonstrated an intention to permanently relocate, but this not apparent from the document.
In relation to the possible merits of the appeal, the father expresses concern that he has only seen a one way ticket to China without an itinerary. It was confirmed by the mother during the hearing of this application that a copy of the return ticket had been supplied to the father, and as it was in Chinese she had attempted to explain its contents. The mother has also provided phone numbers and addresses of the relevant contacts in China for the father to communicate with the child, and the mother assured this Court that she would facilitate the child making regular calls home to the father, while away for the three weeks.
In addition the father expressed concern that should the child not return from China there is no “retrival process”. This is a matter to which the judge referred. It is clear the judge was alive to the concerns of the father, summarised at [23] of the Reasons, and the fact that China was not a signatory to the Convention on the Civil Aspects of International Child Abduction (25 October 1980) (at [30]). It was entirely within his Honour’s discretion to balance those risks against the evidence of the mother, finding:
31.In this particular case, having seen and heard the mother and the father many times in my Court over the last few years, I have formed certain impressions of them. I have most certainly not formed the view that the mother cannot be trusted or that she does not depose to the truth in the evidence she gives to the Court. On balance, I am satisfied that she is being truthful when she asserts that she and the child will return to [Region E] at the end of holiday visit to China. The mother has travelled to China and returned on a number of occasions since she and the father separated. I am satisfied that the mother can be trusted when she tells the Court that she considers the child’s school to be such a high quality school that she would not want to remove her from that school before she finishes her high school education. After all, she has been fighting to keep the child at that school since separation. The mother has lived for a long time in Australia now. I accept her evidence that she is very happy living here and wants to continue to do so.
Finally, in oral submissions the father also expressed concern that his forensic psychological report had not been considered by the trial judge, and waiting on an updated report was some cause of the delay in filing his notice of appeal. The father was unable to tell this Court whether he had actually asked the trial judge to consider this forensic psychological report.
To the extent there is any possible merit in the appeal, this needs to be weighed against the significant prejudice to the mother should leave be granted to file appeal books, including transcript and summaries of argument.
It is obvious that this could not be completed in the next three weeks, including a hearing and decision. The inevitable effect is that the child would not be able to travel. Such result would cause a substantial injustice to the mother, who has given the court repeated assurances and complied with every order in preparation for the trip. The father was unable to point to any error on the part of the trial judge (House v R (1936) 55 CLR 499).
Conclusion
It can be seen overall that to do justice the application should be refused. Both parties appeared in person today, and therefore neither party would have incurred significant costs in preparing for today’s hearing. It is therefore appropriate there be no order as to costs.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 6 June 2016.
Associate:
Date: 6 June 2016
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