Navarro and Navarro - [2017] FamCAFC 171

FAMILY COURT OF AUSTRALIA

NAVARRO & NAVARRO

[2017] FamCAFC 171

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – where the father sought to appeal orders refusing his application to travel overseas with the children – where the father applied to expedite the hearing of his appeal – where proposed travel was to occur in a matter of weeks after the hearing of this application – where the father also sought the permanent removal of the children’s names from the airport watch list – where the father had consented to the children’s names being placed on the watch list – where the appeal would not be rendered nugatory – where the application is dismissed – costs awarded in a fixed sum.

Family Law Rules 2004 (Cth)

APPLICANT:

Mr Navarro

RESPONDENT:	Ms Navarro
FILE NUMBER:	BRC	9638	of	2016

APPEAL NUMBER:

2017

DATE DELIVERED:

23 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

23 August 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 July 2017

LOWER COURT MNC:

[2017] FCCA 1936

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jordan

SOLICITOR FOR THE APPLICANT:

Barry.Nilsson Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Bertone

SOLICITOR FOR THE RESPONDENT:

Leishman Legal

Orders

The Application in an Appeal filed 14 August 2017 is dismissed.
The Applicant Father pay the Respondent Mother’s costs of and incidental to that application fixed in the sum of $7,000 within twenty-one (21) days.

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 Navarro & Navarro 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 38 of 2017
File Number: BRC 9638 of 2016

Mr Navarro

Applicant

And

Ms Navarro

Respondent

EX TEMPORE REASONS FOR JUDGMENT

On 24 July 2017, Judge Vasta in the Federal Circuit Court dismissed the father’s Application in a Case filed on 12 June 2017 that he be permitted to travel with the children the subject of the proceedings, K born May 2010 and P born April 2012, outside of the Commonwealth of Australia to the United States of America (“the USA”) from 14 September 2017 to 24 September 2017. The orders sought included an order that the Australian Federal Police forthwith cause removal of the children’s names from the Watch List. That order, that is an order placing the names of the children on the Watch List had been made on 22 November 2016.
The orders of 22 November 2016 were made in consequence of the father having filed an Initiating Application for parenting orders, seeking both orders on an interim and final basis, on 26 September 2016. Notably in his application the father had sought orders for the children’s names to be placed on the Watch List for a period of one year. The father’s case in support of that order was to the effect that because the mother had some connection or association with a person in the USA that she might remove the children to the USA.
In filing her response the mother sought orders also that the children’s names be placed on the Watch List. Her contention concerning the need for the placement of the children’s names on the Watch List can be seen as, in summary, that the father’s country of origin is Columbia and that on her case prior to the parents’ separation, and with greater intensity leading up to the separation, the father had threatened to take the children to Columbia and that they would never be seen again, or words to that effect. Secondly, he threatened or at least advised the mother to the effect that he planned to retire to Columbia when he reached the age of 50 years and thirdly, there is some evidence in the mother’s case to the effect that the father had been repatriating funds, in an unspecified amount, to Columbia.
In the event, on 22 November 2016, in circumstances where both parties had sought orders in terms for the placement of the names on the Watch List, there was consent reached and the order actually made was by the consent of both parties.
As seemed to be the position in the course of argument of this application, the father has not provided evidence denying that he made the threats or statements to the mother to which I have briefly referred. It is the mother’s case in terms of seeking final parenting orders that orders should be made perpetuating the position that the children’s names are on the Watch List, with neither parent being able to remove them from the country.
The application before me is the Application in the father’s Appeal from the orders of Judge Vasta to expedite the hearing of his appeal from Judge Vasta’s dismissal of his application. The circumstance relied upon primarily by the father for expedition, is that his planned trip to the USA is between 14 September 2017 and 24 September 2017. If the appeal is not expedited obviously his appeal will not be heard and determined prior to the occurrence of the planned trip.
There is no specific rule within the Family Law Rules 2004 (Cth) (“the Family Law Rules”) guiding the exercise of discretion in relation to the expedition of appeals, but commonly a judge of the Full Court hearing applications for expedition has regard to r 12.10A of the Family Law Rules governing, or at least giving guidelines, as to matters the Court should take into account in expediting a trial for the first day of hearing of the trial.
Whilst expressed in various ways, or at least identifying various matters, it can be seen that what the rule is designed to guard against is substantial injustice if expedition is not granted. That can be seen amongst various of the considerations expressed in the rule, for example, whether the case involves allegations of child sexual or other abuse; whether an expedited trial would avoid serious emotional or psychological trauma to a party or a child, and the like.
It is contended on behalf of the father that if his appeal is not expedited his appeal would be rendered nugatory. However, it can be seen that both in his application before Judge Vasta and the orders sought on appeal by way of

re-exercise of the discretion if his appeal succeeds, the father seeks orders that would have the effect that the children’s names are removed from the Watch List. That is, he does not confine his application to simply a temporary suspension of the subject orders but he seeks a permanent position so far as the removal of the children’s names. In this context it is relevant to note that there was no appeal by the father from the orders made on 22 November 2016.
In terms of his conduct of the proceedings, which is a matter sub-rule (2) of the relevant rule identifies, namely whether the applicant has acted reasonably and without delay in the conduct of the case, as it seems to me the circumstances I have briefly referred to for the making of the orders on 22 November 2016, imply that it was never likely that the mother would readily consent to an order for the removal of the children’s names from the Watch List. That is fortified by reference to her application for final orders being orders of the kind I have already referred to, namely permanency about the position that the children not be removed by either parent from the Commonwealth of Australia.
Following the orders being made on 22 November 2016 the matter was again before the Federal Circuit Court on 15 March 2017, when further orders were made by consent for interim parenting arrangements. On the mother’s case it was important to her, in terms of agreeing as she did on 15 March 2017 to orders which were made by consent, that she had the protection of the order of 22 November 2016 concerning the Watch List.
Against that background it was only on 18 April 2017 that the father for the first time corresponded with the mother’s solicitors seeking permission for the proposed travel. There being no response from the mother, a further letter was sent on 26 April 2017. The father did nothing until 16 May 2017 when the mother, by her solicitors, responded in the negative. There was then on 17 May 2017 a letter from the father’s solicitors and for the first time an offer of security by the father of a modest sum of $10,000. There being no reply, it was not until 12 June 2017 that the father filed his Application in a Case that was heard and determined by Judge Vasta.
The rule identifies that the Court should consider any prejudice towards a respondent. Whilst on one level there is no prejudice to the mother of an expedition of the appeal, there is in the circumstances as it seems to me, some prejudice to be considered. As is pointed out on behalf of the mother, the appeal will not in fact be rendered nugatory because it challenges, in effect, the wider question of whether the father or either party should ever be permitted to remove the children from the Commonwealth of Australia, during the currency of the current orders made on 22 November 2016.
Indeed on appeal, in terms of the orders sought on appeal, the father seeks the removal or the discharge of those orders. For the same reason it does not seem to me that the father’s appeal is rendered nugatory if his appeal is not expedited. If he seeks to pursue on appeal, effectively the removal of those orders, he will still have that opportunity in the normal course of the hearing of the appeal.
It seems to me that the only ground in favour of the father’s application for expedition was for his right of appeal to be preserved, and it would only be if I was satisfied that the appeal would be rendered nugatory that I would grant expedition. As I have already just referred to, as it seems to me the appeal will not be rendered nugatory, in the wider sense, and therefore the ground for expedition of the appeal is removed.
As it seems to me, of particular relevance in this case is the nature of the underlying issue. As important as it might be to the father for him to travel to the USA for 10 days to join family members, in terms of this case being expedited and the potential for this case being given priority to the detriment of other cases, it must be observed that the subject issue is not of such seriousness, in terms of child welfare issues, as other appeals that parties are waiting to have heard and determined by the Court. As mentioned during the course of the argument, the Full Court is currently hearing appeals from orders made some 12 months or more ago.
It is trite that some appeals succeed. Necessarily that means that the result of some appeals is to set aside parenting orders, in cases involving significant issues concerning children. Viewed another way, it means that for 12 months or more, orders which are not meeting the best interests of children are extant. Compared to those kinds of cases the subject issue here in terms of the particular trip on 14 September 2017, does not command itself as being of particular seriousness in terms of issues of child welfare.
As has been pointed out for counsel for the mother, there is a family consultant involved in this case and she has earlier provided a report in terms of the children’s interests concerning overseas travel, their young age, and the feature that it might be some time to come before it could be said that an overseas trip meets their best interests.
Put in another way, it does not seem to me that anything about the children’s interests, advanced in this case, results in the conclusion that it would be contrary to the children’s interests not to expedite this appeal for hearing.
As I have earlier observed, if the father chooses to pursue the appeal for the purpose of challenging more generally the continuance of the orders that were made on 22 November 2016, he has that right. As has also been pointed out, in terms of timing, the position concerning a forthcoming proposed trip on 14 September 2017 is really a situation of the father’s own making, in terms of him organising the trip around the proposed family reunion.
The evidence in the case is to the effect that members of the paternal family visit Australia (albeit not necessarily each and every one of the individuals the father identifies as being present at the forthcoming family reunion), and the feature that there are visits and maintenance of connections between the children and the paternal family members.
Fundamentally the issues in dispute surrounding the risk of the children’s removal from the jurisdiction are not readily solved by an appeal process. That is, the underlying factual issues about risk require a trial of the disputed issues, and evidence to be tested, for their resolution. On an appeal and on a

re-exercise of discretion, even if the appeal was found to have merit, the Court would consider the evidence that was before Judge Vasta whilst in some circumstances further evidence can be received on appeal that is usually only when it is undisputed. There is no prospect, as it would seem to me, of that being the position here.
For all of these reasons I am not satisfied that it would be legitimate to exercise the discretion to expedite the hearing of the father’s appeal, and I therefore dismiss his Application in an Appeal.

Costs

Consequent upon my dismissal of the father’s Application in an Appeal is the mother’s application for an order for costs on an indemnity basis.
The father does not wish to be heard against an order for costs being made on a party and party basis, but opposes an order on an indemnity basis.
It is recognised that in ordering costs on an indemnity basis it is a very great departure from the usual order for costs on a party and party basis. Whilst the father has been wholly unsuccessful on this application, that is not of itself a basis for ordering indemnity costs.
In my judgment there are not sufficient circumstances here to justify an award of costs on an indemnity basis and the order should be made on a party and party basis.
With the benefit of a schedule of costs structured on an indemnity basis, agreement was reached on behalf of both parties that a reasonable amount to fix for costs, on a party and party basis, would be $7,000. The mother’s counsel did not wish to be heard in opposition to that being an appropriate amount if the costs are fixed on a party and party basis.
I therefore formally order that the father pay the mother’s costs of and incidental to this application fixed in the amount of $7,000, within 21 days of these orders.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 23 August 2017, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 23 August 2017