Sadasivam & Seshan

[2019] FamCAFC 76

FAMILY COURT OF AUSTRALIA

SADASIVAM & SESHAN [2019] FamCAFC 76

FAMILY LAW – APPEAL – CHILDREN – Parental responsibility – Overseas Travel – Where the destination is not a signatory to the Hague Convention – Where the primary judge made orders in March 2019 temporarily suspending both an interim injunction restraining the child’s removal from Australia and an interim airport watch list order, which orders were made in September 2017 – Where the mother’s application to suspend the interim orders was made on the mistaken basis that the interim orders were still operable and survived the final consent orders made in August 2018 – Where the final consent orders conferred equal shared parental responsibility for the child upon the parties and did not preserve the interim injunction and interim airport watch list order – Where the father is concerned the mother is a flight risk and she will not return to Australia with the child – Where the appeal succeeds for reasons unrelated to the grounds of appeal – Where the grounds of appeal are considered but were misconceived – Where the appealed orders were made pursuant to errors of law – Where no material deprivation of procedural fairness – Where factual findings made by the primary judge were open on the evidence – Where there is no valid application to remit for re-hearing – Where an order made to dismiss the mother’s application – Where no option but for the appeal to succeed and the orders set aside – Where a single judge of the Full Court declares all interim orders made prior to the final consent orders concerning the child are discharged – Where the party seeking to travel with the child outside Australia will need to file fresh proceedings if the parties cannot reach agreement in exercise of their equal shared parental responsibility.

FAMILY LAW – COSTS – Where appeal successful – Where the appeal succeeds on questions of law unrelated to the pleaded grounds of appeal – Where the parties sought costs certificates – Where the grounds of appeal were misconceived and the appellant’s costs needlessly incurred – Where the respondent was only represented on the day of the appeal and had no prior costs to recoup – Where no valid application to remit for rehearing – Where grant of costs certificates refused.

Family Law Act 1975 (Cth) ss 60CA, 65AA, 65DAC, 93A, 94AAA,
Federal Proceedings (Costs) Act 1981 (Cth)

Federal Circuit Court Rules 2001 (Cth) rr 1.05, 4.01

De Winter and De Winter (1979) FLC 90-605
Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Klewer v Official Trustee in Bankruptcy (No.2) [2010] NSWCA 258
Marriage of Millar (1983) FLC 91-326; [1983] FamCA 21
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Repatriation Commission v Nation (1995) 57 FCR 25
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT: Mr Sadasivam

RESPONDENT: Ms Seshan

FILE NUMBER: MLC 6494 of 2017

APPEAL NUMBER: SOA 22 of 2019

DATE DELIVERED: 1 May 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Austin J

HEARING DATE: 1 May 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 18 March 2019

LOWER COURT MNC: [2019] FCCA 742

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Moisidis

SOLICITOR FOR THE APPELLANT: Resolve Conflict

COUNSEL FOR THE RESPONDENT: Mr Scriva

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. The appeal is allowed and Orders 2 to 7 inclusive made by Judge A. Kelly of the Federal Circuit Court of Australia on 18 March 2019 are set aside.

2. The Application in a Case filed by the respondent on 30 January 2019 is dismissed.

3. It is declared that any and all interim orders concerning the child, born on 19 June 2016, under Part VII of the Family Law Act 1975 (Cth) made prior to the final orders of 1 August 2018 are discharged.

4. The parties’ application for costs certificates pertinent to the appeal under the Federal Proceedings (Costs) Act 1981 (Cth) are 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 Sadasivam & Seshan 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 22 of 2019
File Number: MLC 6494 of 2017

Mr Sadasivam

Appellant

And

Ms Seshan

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This appeal was heard by a single judge following the Chief Justice’s direction pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).

2. By decrees made on 18 March 2019, a judge of the Federal Circuit Court of Australia determined a parenting dispute between the parties under Part VII of the Act. The decrees purported to temporarily suspend both an interim injunction restraining the parties’ removal of their young child from Australia and an interim airport watch list order, thereby enabling the respondent mother to take the child to India to visit her family for a period of just over three weeks. The appellant father appealed from these orders. He fears the mother is a flight risk and, if the orders are not set aside, she will take the child to India and not return to Australia.

3. For the reasons which follow, the appeal should succeed, but for reasons almost entirely unrelated to the grounds of appeal.

History

1. The parties married in India in 2012, shortly after which they moved to live in Australia.

2. The mother returned to India in the early stages of her pregnancy and the parties’ only child was born in India in 2016.

3. The parties were granted permanent residence status in Australia in September 2016, but the mother and child did not return to Australia to live until July 2017, coinciding with the parties’ final separation.

4. Contemporaneously, the father commenced proceedings seeking parenting orders in respect of the child and a series of orders then ensued.

5. On 21 July 2017, the father was granted leave to press an ex parte application, which resulted in an injunction restraining the parties from removing the child from Australia and an order placing the child’s name on the airport watch list until the day after the next return date. The proceedings were then adjourned until 5 September 2017, so the mother could be served with the father’s process.

6. On 5 September 2017, a suite of interim orders in respect of the child was made with the parties’ consent. Relevantly, the orders provided for the child to live with the mother and to spend supervised time with the father. The injunction restraining the parties’ removal of the child from Australia and the airport watch list order were renewed for a period of two years.

7. On 16 April 2018, more interim orders were made with the parties’ consent. All former orders, save for the injunction and the airport watch list order, were discharged. The fresh orders provided for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, and for the child to spend time with the father on a reasonably regular basis without the need for supervision.

8. On 1 August 2018, the parties consensually entered into final parenting orders with the intention of ending their dispute under Part VII of the Act. The orders provided for the parties to equally share the child’s parental responsibility, for the child to reside with the mother, and for the gradual escalation of the child’s interaction with the father into the future. It cannot be doubted the orders were intended to end the parenting dispute, because the content of the orders implies their finality and both parties have expressly acknowledged their finality.

9. The orders were not expressed to be made “pending further order” and were clearly intended to regulate the time spent by the child with the father into the future, well beyond the time of any trial they expected, which was eventually fixed in April 2019. The orders stipulated the structured increase in the amount of time spent by the child with the father in six monthly increments up until May 2020, lastly making provision for the contact regime “[f]rom 1 May 2020 onwards” (Order 2.3(e)). The orders required the parties to attend mediation by 1 January 2021 if they failed to agree upon the child’s interaction with the father in school holidays beyond that time (Order 2.6). The orders also contained procedural directions concerning the future progress of the parties’ property dispute under Part VIII of the Act, which remained unresolved, but no similar procedural orders were made concerning the parenting dispute under Part VII of the Act. There was no need, since the orders finalised that aspect of the litigation.

10. The mother deposed in her affidavit filed on 30 January 2019 (at [13]), upon which she relied during the hearing before the primary judge:

    On 01 August 2018, [the father] and I have reached a final agreement in relation to the child’s parenting arrangement…

11. At the hearing before the primary judge, the father’s solicitor had the following exchange with the primary judge:

    [HIS HONOUR:] You have a two-day hearing very soon [in late April 2019]. Is that about property and parent [sic]?

    [SOLICITOR FOR THE FATHER:] Purely about property, your Honour.

    (Transcript 18 March 2019, p.11 lines 22 – 25)

12. During the appeal, the parties’ lawyers conceded the orders made in respect of the child on 1 August 2018 were final and no further parenting dispute survived those orders.

13. Despite the parties’ mutual understanding about the finality of the parenting orders made between them on 1 August 2018, the orders did not expressly clarify the status of the interim injunction and interim airport watch list order made on 5 September 2017, each for a term of two years until September 2019. The final orders made in August 2018 neither discharged nor preserved any of the existing interim orders in relation to the child, including the injunction and the airport watch list order.

14. The parties assumed the interim injunction and the airport watch list order made in September 2017 continued to apply for the duration of their two year terms. That can be the only rational explanation for why the mother later brought her application in January 2019 to temporarily suspend those orders and for why the father felt compelled to defend it rather than simply seek its summary dismissal.

15. When the final orders were made on 1 August 2018, the following notations were made about the parties’ existing positions:

    B.The [mother] may in future bring application with respect to overseas travel and consequential orders such as the holding of the child’s passport and it is noted that Rice and Asplund [(1970) FLC 90-275] will not be plead in bar to such application.

    C.The [father] continues to hold significant concerns with respect to any overseas travel given the alleged previous threats by the [mother] to remove the [c]hild from the Commonwealth of Australia without [the father’s] consent, which allegations are disputed by the [mother]. 

16. Obviously enough, at that point in time, the mother refused to relinquish her plans to travel overseas with the child and the father remained suspicious she would not return to Australia with the child if she was permitted to do so.

17. As foreshadowed, in January 2019, the mother filed an application seeking to temporarily suspend the injunction and the airport watch list order made in September 2017 so she could take the child with her to India to visit her family. The application was fixed for hearing in a duty list on 18 March 2019.

18. For reasons which are not altogether clear, the primary judge mistakenly entertained the application as an interim application because it was filed in the form of an Application in a Case, which form is preserved for interim and procedural applications. But there were no pending parenting proceedings. Only the parties’ substantive property dispute was still extant. During the hearing of the appeal, the parties confirmed the trial they recently conducted on 29 April 2019 was confined to the adjustment of their property interests and it was adjourned part-heard until 17 June 2019.

19. Of course, if the parenting dispute under Part VII of the Act was already resolved by the time the primary judge heard the mother’s application, as both parties believed, there was no scope for the primary judge to entertain any interim parenting application. The primary judge had jurisdiction to entertain a fresh parenting dispute, but no application for only interim orders could then be made as there was no pending application for final orders. The mother’s application could only then have feasibly been construed and entertained by the primary judge as one to determine an impasse between the parties in the exercise of their equal shared parental responsibility for the child, granted to them by the orders made on 1 August 2018 (Order 2.1), but such an application was not amenable to determination on an interlocutory basis.

20. The primary judge heard and determined the parenting dispute on 18 March 2019, granting the mother’s application by purporting to temporarily suspend the injunction and the airport watch list order for a period of approximately four weeks during May 2019. The father appealed from the orders.

21. The father applied to the primary judge to stay the appealed orders, but his application was dismissed on 2 April 2019 and he did not appeal the dismissal orders. He instead sought the expedition of his existing appeal against the interim orders. With the parties’ consent, expedition was granted and the appeal was listed for urgent hearing on 1 May 2019.

Appealable error

1. The grounds of appeal promulgated by the father were largely misconceived, but the appeal should nonetheless succeed because of appealable error.

2. The parties and the primary judge all wrongly presumed the appealed orders made on 18 March 2019 operated to temporarily suspend the injunction and airport watch list order made on 5 September 2017, whereas all interim orders made in respect of the child during the litigation (including those made in September 2017) were spent and discharged by the final parenting orders which were made with the parties’ consent on 1 August 2018. Although the interim orders were expressed to operate until September 2019, they were undoubtedly still characteristically interim in nature. Interlocutory orders may be discharged at any time before the trial or settlement of an action, but are ipso facto discharged by determination of the action, since interim orders are only intended to regulate the parties’ conduct in one form or another until the action between them is finally determined according to law (see Klewer v Official Trustee in Bankruptcy (No.2) [2010] NSWCA 258 at [6]; Fatimi Pty Ltd v Bryant [2002] NSWSC 750 at [226]-[232]; Marriage of Millar (1983) FLC 91-326 at 78,220 – 78,221).

3. It matters not that the parties erroneously believed the interim injunction and the interim airport watch list order made in September 2017 continued to prevail beyond the final determination of their dispute under Part VII of the Act in August 2018, since court orders are construed according to accepted guides of construction, which is an objective rather than subjective process (Repatriation Commission v Nation (1995) 57 FCR 25 at 33 – 34).

4. Any implicit contention that the interim injunction and the interim airport watch list order still continue to apply for the remaining duration of their two-year terms until September 2019, notwithstanding the final orders made in August 2018, is rejected. The two-year term selected by the parties for the interim injunction and the interim airport watch list order was an arbitrary period designed to strike a balance between the short term risk of the mother absconding overseas with the child and the unreasonable restriction of the mother’s freedom of movement, but only while the litigation was on foot and well before they had any idea of when they might settle their dispute or it might be finally heard. The selection of the fixed term for those interim orders cannot be interpreted as an intention that they should or would endure beyond final orders. The proof of that is found in the distinction between the interim orders later made on 16 April 2018 and the final orders lastly made on 1 August 2018. The former expressly preserved the interim injunction and the interim airport watch list order, whereas the latter did not. By the time the parties agreed upon final parenting orders in August 2018, nearly 12 months had elapsed since the interim injunction and the interim airport watch list order were made and they agreed to omit any further restraint from the final orders. They instead agreed to equally share parental responsibility for the child, which obliged them to confer over all “major long-term issues” related to the child (s 65DAC), and the child’s international travel with either one of them was such an issue.

5. Not only did the final parenting orders of 1 August 2018 exhaust all antecedent interim orders, all outstanding applications for parenting orders also merged in the consent orders. At that time, the father’s standing application was contained within his Amended Initiating Application filed on 1 September 2017. In that Application, under the heading of “Final Orders sought”, he pressed for an injunction restraining the parties from removing the child from Australia and for the child’s name to be maintained on the airport watch list (proposed Order 5) and injunctions restraining the mother from taking steps to have the child travel on her passport without the Court’s permission (proposed Order 6). The orders made in August 2018, with the parties’ consent, omitted any orders to that effect. In fact, the August 2018 orders were silent about any restriction at all upon the child’s international travel. The only order then made which could conceivably regulate the child’s international travel was the order investing the parties with equal shared parental responsibility. It must follow that the father’s standing proposals for the permanent injunctions and airport watch list order were abandoned as part of the negotiated package of final orders.

6. Therefore, the subject application, filed by the mother in January 2019 and entertained by the primary judge in March 2019, was incompetent for two reasons.

7. First, it sought the temporary suspension of the interim injunction and the interim airport watch list order, made in September 2017, when those orders no longer existed. Accordingly, the order made by the primary judge in March 2019 (Order 2), which wrongly assumed the continuing validity of and purported to temporarily suspend the discharged interim orders, was null and void. It should therefore be set aside. In addition, in exercise of the power conferred by s 94AAA(6) of the Act, it should be made clear by decree that the final orders made on 1 August 2018 resulted in the discharge of all antecedent interim orders, as the primary judge could and ought to have made clear by order when dismissing the mother’s application. Both parties eventually agreed such an order could and should be made in the appeal. The further order in that respect will facilitate removal of the child’s name from the airport watch list by the Australian Federal Police, if not yet removed.

1. Second, the mother’s application was filed in the form of an Application in a Case, befitting an application for interlocutory or procedural orders, and was apparently set down for hearing in a duty list in the mistaken belief that only interim orders were sought and would be made. The error was perpetuated by the primary judge, who entertained it as an interim application and later described the appealed orders as “interlocutory” in the reasons for judgment delivered when dismissing the father’s stay application. Given the existence of final parenting orders, the mother’s application could not have been entertained as an interim application (r 4.01 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”)). Rather, despite the mother’s innocent misuse of the interlocutory form, the application could only have been entertained as a substantive one, commencing new proceedings under Part VII of the Act, requiring the primary judge to break a deadlock between the parties in the exercise of their equal shared parental responsibility for the child by deciding whether he could travel overseas with the mother. Absent any order truncating normal procedure by requiring the substantive dispute to instead be heard summarily (r 1.05 of the Rules), and there was none, the application had to be tried and determined on its merits in the conventional adversarial way. The order made by the primary judge to abridge the hearing of the mother’s Application in a Case (Order 1) did not abridge the traditional procedure for hearing and determining a contested substantive application. Accordingly, the consequential orders made by the primary judge to facilitate the child’s overseas travel (Orders 3 to 7) were made pursuant to errors of law. They cannot stand in isolation from Order 2 and should also be set aside. Since the mother’s application was incompetent, there is no valid application to remit for re-hearing and so an order must be made for its dismissal.

2. Whether the mother may then depart Australia with the child is a moot point. There will be no injunction or airport watch list order to restrain her, but the father may maintain his objection in the exercise of his equal shared parental responsibility for the child. Without agreement between them, further litigation under Part VII of the Act looks likely, but that will require one party to file, serve and contest an Initiating Application (or amend existing pleadings) in the Federal Circuit Court seeking final and interim orders (perhaps on an urgent basis) as may be necessary.

3. The fact the grounds of appeal did not raise these issues, or only touched upon them tangentially, is not to the point. Under the Act, this appeal is a rehearing, requiring a "real review" to be conducted of the first instance hearing and of the primary judge's reasons for judgment to determine whether there was a material error of fact or law (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]). If the law confers a right of appeal, it should be a reality, not an illusion. If the decision of the primary judge was wrong, it should be corrected (Warren v Coombes (1979) 142 CLR 531 at 553).

4. Although strictly unnecessary, in deference to the parties’ efforts to prosecute and defend the appeal, some attention should be given to the pleaded grounds of appeal.

Ground 1

1. This ground of appeal contended the father was denied procedural fairness at the hearing in March 2019 in three discrete ways, namely:

   (a)by converting the interim hearing, fixed in a duty list, into a final hearing without the parties being on notice of the transformation;

   (b)by failing to grant the father an adjournment of the hearing; and

   (c)by refusing the father permission to rely upon affidavits he previously filed in the proceedings.

2. As already noted, the mother’s contentious application was fixed for hearing before the Federal Circuit Court of Australia in a duty list on 18 March 2019. That hearing date was stamped on the face of the mother’s Application in a Case, which was served on the father on 1 February 2019, some six weeks beforehand.

3. In early March 2019, the parties’ property dispute under Part VIII of the Act was fixed for final trial over two days, commencing on 29 April 2019. Since it is relevant to the father’s submissions under this ground of appeal, it is useful to observe at this point that the procedural orders made on both 1 March 2019 and 7 March 2019 in respect of the impending trial made no mention at all of the mother’s parenting application, which was then already listed for hearing on 18 March 2019.

4. At the time of the hearing on 18 March 2019, the father had still not filed any Response or affidavit in rebuttal of the mother’s application. When asked why by the primary judge, the father’s solicitor explained his misunderstanding about the hearing date allocated to the application. He contended the Commonwealth Courts’ electronic portal showed the application as being listed on both 18 March 2019 and 30 April 2019. The father’s solicitor said:

   … Perhaps we were somewhat mislead by the [Commonwealth Courts] portal, but our understanding was [the parenting dispute was listed with the property dispute on 30 April 2019]…

   (Transcript 18 March 2019, p.8 lines 16 – 20)

   …Perhaps somewhat naively we referred to the Commonwealth Courts portal which said this was simply a duty lists hearing. We understood that directions would be made today for the final hearing which was also scheduled on that portal for 30 April [2019].

   (Transcript 18 March 2019, p.8 lines 34 – 37)

5. However, the father’s solicitor was impelled to admit the hearing date of 18 March 2019 was endorsed on the face of the Application with which the father was served, as the following discourse revealed:

   [HIS HONOUR:] …When I look at this application in a case…

   [SOLICITOR FOR THE FATHER:] Yes, your Honour.

   [HIS HONOUR:] In the first line of the case it says court date Monday, 18 March 2019.

   [SOLICITOR FOR THE FATHER:] Well – yes.

   HIS HONOUR:] Where on the face of this application could it be conceived that it’s not listed for hearing today?

   [SOLICITOR FOR THE FATHER:] Yes. No. I understand that, your Honour…

   (Transcript 18 March 2019, p.8 lines 22 – 34)

6. The father’s solicitor was also impelled to admit his understanding of the listing arrangements for the parenting application, as gleaned from the Commonwealth Court’s electronic portal, was inconsistent with the procedural orders made by the Federal Circuit Court some weeks before on 7 March 2019. The father’s solicitor said:

   …and I can accept that [the listing of the mother’s parenting application is] not specifically referred to in those orders made by her Honour [on 7 March 2019]…

   (Transcript 18 March 2019, p.8 lines 19 – 20)

7. For completeness, nor did the earlier procedural orders made on 1 March 2019 refer to the mother’s parenting application.

8. To the extent the first limb of this ground of appeal could be construed as a complaint about the primary judge’s erroneous determination of the mother’s application on an interim rather than final basis, it is correct for the reasons already given. However, that was not the overt premise of this complaint. Rather, the father contended the mother’s application was listed before the Federal Circuit Court on two different dates and, over his objection, the primary judge decided to hear it on the former and not the latter date. It is not correct to baldly assert the primary judge “converted” or “transformed” an interim hearing into a final hearing – either without notice to the parties, as the ground contended, or otherwise. The mother’s parenting application was filed in the form of an Application in a Case. She only purported to seek, and the primary judge only purported to make, interim orders. No interim orders could have been properly sought or made in the terms the mother proposed, but that entailed error of the different kind already discussed.

9. Even though the father opposed the mother’s application, by reason of his solicitor’s misunderstanding about the allocated hearing date, the father had not filed any Response or affidavit. The second and third limbs to this ground of appeal asserted the father’s denial of procedural fairness by the dismissal of his adjournment application and then the refusal of his permission to rely upon affidavits he had previously filed in the proceedings. In essence, those two complaints ran together because the only reason the father needed an adjournment was to afford him the opportunity to file an affidavit setting out the evidence upon which he wished to rely. The analysis of those contentions requires resort to the transcript of 18 March 2019.

10. The father’s application for an adjournment was far from unconditional and robust, but it was obliquely discernible. The father’s solicitor said:

    …If our understanding [about the hearing date allocated for the interim hearing] was incorrect, I would be indulged if your Honour was willing to perhaps schedule a separate interim hearing to enable our client…

    (Transcript 18 March 2019, p.8 lines 39 – 40)

11. His application was cut short by the primary judge’s retort that the application was already in the course of being heard and determined. Inferentially, the father wanted the adjournment to enable him time within which to file an affidavit. It can only be concluded that, by denying him the opportunity, the primary judge considered, in the balance, the prejudice to the mother of any further delay weighed more heavily than the prejudice to the father of being compelled to proceed. That conclusion was not plainly wrong, since the mother was entitled to just as much procedural fairness as the father. However, even if the denial of the adjournment did wreak unfairness upon the father, the appeal on that ground would still not succeed unless the denial of procedural fairness influenced the ultimate outcome. Not every departure from the rules of natural justice will entitle the aggrieved party to a new trial (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).

12. As the hearing continued, the father’s solicitor then sought to instead rely upon the father’s past affidavits, saying:

    …our client’s arguments against the suspension of the airport watch list – as outlined in our client’s previous affidavit material…

    (Transcript 18 March 2019, p.10 lines 13 – 14)

13. Again he was cut short by the primary judge, who observed the father had some six weeks within which to file his Response and affidavit, but had not done so. The primary judge considered the explanation advanced for his failure was less than adequate (at [3]).

14. In response, the father’s solicitor then asked if the primary judge would nevertheless entertain his submissions based on the affidavits previously filed by the father in the proceedings, which the primary judge permitted, as the transcript reveals:

    [SOLICITOR FOR THE FATHER:] Would your Honour indulge myself into giving oral submissions about the previously deposed to materials?

    [HIS HONOUR:] Yes.

    (Transcript 18 March 2019, p.10 lines 28 – 31)

15. Once given that permission, the father’s solicitor then freely made his submissions based on the father’s past evidence about the flight risk posed by the mother and how the risk might be averted. Those reasons encompassed the mother’s past stated intention to return to India permanently, the mother’s lack of family in Australia, the parties’ asserted lack of valuable property in Australia, the fact India was not a signatory State to the 1980 Hague Convention on Civil Aspects of International Child Abduction (“Hague Convention”), the father’s willingness to care for the child while the mother travelled overseas alone and his availability to do so by reason of the flexibility of his employment and the child’s attendance at child-care.

16. Following the submissions made by the father’s solicitor, the primary judge tried to refine the father’s focus on the central tenet of the dispute: his contention the mother posed a “flight risk”. The following debate then ensued:

    [HIS HONOUR:] Beyond the bare proposition that just pulls out the flight risk argument, what’s the substantive basis for it?

    …

    [SOLICITOR FOR THE FATHER:] It’s just based on prior correspondence with the mother….she has indicated that she wants to relocate to India.

    HIS HONOUR:] How old is that [correspondence]?

    [SOLICITOR FOR THE FATHER:] At least a year old, admittedly, your Honour, is my understanding.

    (Transcript 18 March 2019, p 16 lines 12 – 29)

17. In fact, according to the father, the mother stated her desire to relocate back to India with the child on two occasions in June and July 2017, some 20 months beforehand, at or about the time of the parties’ final separation, when the parties’ feelings were raw and not long after the mother’s arrival in Australia with the child. He swore to that evidence in his affidavit filed on 1 September 2017, which was the premise for the injunction and the airport watch list order being made consensually on 5 September 2017. The mother’s more recent evidence, filed on 30 January 2019, was that she and the child are permanent residents of Australia, she intends to live with the child in Australia permanently, and she intends that both she and the child will become Australian citizens when they are eligible.

18. In relation to the father’s submission about the flight risk posed by the mother, the primary judge stated in the reasons for judgment:

    32.The matter which was really put against the grant of this relief was articulated in terms of flight risk.  No contemporaneous evidence was adduced by the respondent to support the submission.  Instead, in those circumstances, resort was given to the affidavit filed by the Respondent father in respect of his earlier Watch List application in which he deposed to evidence that the Applicant mother wished to return to India.  That evidence was given in circumstances where the Applicant mother had left the home very early one morning and had done so in the face of what appeared to be a highly conflictual situation.  Though I have reservations concerning the question of motive not to return to Australia, I accept the Applicant mother's evidence that her life in Australia is better than that which she would have in India.  Those same factors persuade me to the view that there are objectively no significant motives for the Applicant mother to remain in India.

    (Emphasis added)

19. As can be seen, the crux of the argument about the flight risk posed by the mother distilled to weighing the father’s antiquated evidence of the mother’s stated desire to return and live in India against the mother’s much more recent evidence about her changed intention to remain living in Australia.

20. Three factors weigh persuasively against the father’s appeal on this ground. First, he was given some six weeks between his service with the mother’s application and the hearing to file his fresh affidavit evidence, but he did not avail of the opportunity. His failure was his own mistake, but its rectification depended upon where the prejudice fell most heavily. Second, the father did not contend in the appeal that, had he been granted an adjournment by the primary judge to file fresh evidence, he would have been able to lead evidence of more recent facts or events to impugn the credibility of the mother’s evidence about her intention to return from India after her trip and remain living in Australia. Third, the father made no application in the appeal under s 93A(2) of the Act to adduce any fresh evidence of the type he contended he could have filed but for the primary judge’s denial of the adjournment. Inferentially, no such application was made because there was no such evidence to give. Consequently, the father lost no opportunity to fully advance his case by the refusal of the adjournment. The submissions made on his behalf to the primary judge fully canvassed the evidence he had previously filed to support the injunction and the airport watch list order, which were made with the mother’s consent in September 2017. There was no material deprivation of procedural fairness and so, save for perhaps the first limb, Ground 1 fails.

Ground 2

1. This ground of appeal contended the primary judge applied “wrong principles of law” in the determination of the dispute by:

   (a)ignoring the paramountcy principle and instead giving more weight to the father’s failure to file any Response or affidavit in rebuttal of the mother’s application; and

   (b)by failing to adopt the approach to interim parenting applications discussed by the Full Court in Goode & Goode (2006) FLC 93-286.

2. During the appeal, the third limb of this ground was abandoned, so it is only necessary to consider the first two limbs.

3. Fundamental to the treatment of this ground of appeal is acceptance of the premise that the statutory provisions of the Act are sacrosanct and, while the Full Court is entitled to develop principles to help guide the exercise of the discretion encapsulated within the Act (see Norbis v Norbis (1986) 161 CLR 513 at 519, 537), no guidelines can ever override the plain meaning of the statutory provisions.

4. The Act makes it indisputably clear that the child’s best interests are the paramount consideration in any parenting dispute (ss 60CA, 65AA). The suggestion the primary judge “ignored” such an obvious imperative must be rejected as misconceived, since his Honour expressly acknowledged the paramountcy principle embedded within Part VII of the Act (at [13]). Having done so, nothing within the reasons for judgment provides a reasonable foundation to assert the primary judge then forgot it, ignored it, or gave it only lip service. On the contrary, the primary judge concluded his reasons for judgment with the following finding:

   38.I therefore propose to grant relief substantially in the terms as sought by the Application in a Case.  I do so because I consider that on the whole of the evidence, it is in the best interests of the child that he should be permitted to travel and remain with his mother for the three-week period that she seeks to be in India with her family, and in particular, with her younger sister.

   (Emphasis added)

5. Nor could the father reasonably assert that the primary judge discounted the importance of the paramountcy principle by simultaneously setting it off against and attributing undue weight in the balancing process to his failure to file any Response or affidavit in rebuttal of the mother’s application. In that regard, the primary judge observed only that an inadequate explanation was given for the father’s failure (at [3]) and, as a consequence of his failure, the mother’s affidavit was not contradicted (at [14]). The former finding was open and the latter observation was then inevitably correct.

6. The father’s written submissions to the effect that the primary judge was “biased” against the father and “pre-determined” the interim application in the mother’s favour because of his failure to file any Response or affidavit is rejected as mere conjecture. Although it may be accepted his failure to file any Response or affidavit was due to an honest mistake about the date fixed for hearing of the mother’s application, the primary judge’s finding that his explanation for the mistake was inadequate was certainly open.

7. As has already been explained, the mother’s application should not have been heard and determined as an application for only interim orders. However, with that said, the father’s contentions about the erroneous way in which the interim hearing was conducted cannot be sustained.

8. In the father’s written Summary of Argument, he contended the primary judge infringed the principles falling from Goode about the conduct of interim hearings. In particular, he asserted the primary judge erred by being drawn into contentious factual issues. True enough, the primary judge did make some findings of fact in reliance upon the mother’s uncontradicted evidence on the path to determination of the application, but neither Goode nor any other case is authority for the proposition that findings of fact can never be made during interlocutory hearings. The findings made here by the primary judge were in relation to matters about which the father could probably not have factually contradicted the mother, because they were beyond his personal knowledge.

1. For example, the primary judge accepted the mother’s evidence that she genuinely wanted to visit her family in India for the reasons she gave (at [16], [17], [26]), her opinion was the child would be best served by travelling with her (at [17]), she claimed an interest in a parcel of real property in Australia (at [19]), she has no assets or income in India (at [20], [30], [37]), she has housing, welfare income and child support in Australia (at [20], [30], [32]), she is an Australian resident and will seek Australian citizenship once she has met the qualifying criteria (at [21], [36]), she will stay with her parents when in India with the child (at [22]), and she is willing to give the father make-up time with the child (at [23]). The father could not say anything in rebuttal of that evidence, so its acceptance could not really be controversial at all. The mother also deposed the father had once before booked a ticket for her to travel to India with the child (at [18], [19]), which assertion the father did not challenge during submissions to the primary judge.

2. As can be seen, the mother’s evidence about her intentions, motivations and beliefs was not amenable to factual contradiction by the father. He was only able to challenge the veracity of her stated intention to return to Australia by cross-examination, but he made no application for permission to cross-examine her. In any interim dispute, cross-examination on facts is unorthodox, but not impermissible. It cannot be the case, as the father’s submissions tended to imply, that no dispute can ever be determined on an interim basis when the parties factually dispute one or more issues.

3. The primary judge found that the three to four weeks the child would be away from the father would not likely have any significant effect upon the child (at [28]) and the mother will likely honour her promise to return to Australia (at [29]) but, again, the father could not likely have given any factual evidence to materially influence those findings. His mere doubts about those facts would not be probative.

4. The primary judge acknowledged the father’s concern about the mother being a flight risk, but noted his worry was based on only historic events (at [32]). The primary judge also remained cognisant of the father’s submissions that India is not a signatory State to the Hague Convention (at [33]) and that the parties’ property may not be valuable enough to motivate the mother to return to Australia to recover her share of it (at [35], [36]).

5. Consequently, Ground 2 fails.

Ground 3

1. This ground of appeal contended the primary judge made several material factual findings which were not open on the evidence. Those errors were said to relate to the amount of time the child spends with the father under pre-existing interim orders, the value of the parties’ assets, and the comparison between the mother’s standard of living in Australia and in India.

2. The primary judge found the child was then spending time with the father under the existing interim orders for one day each fortnight (at [28]). The finding was certainly mistaken because, under the most recent orders made in August 2018, the child was spending time with the father on five separate occasions each fortnight, including one overnight stay. Nevertheless, the error was without consequence. The primary judge found the planned trip to India for about three weeks was not of “significant duration” (at [25]), the father’s absence from the child’s life over that period would not have any “significant effect” upon the child (at [28]), and the mother offered the father make-up time to atone for the interruption of the child’s visits (at [23]). In the face of those unchallenged findings, the error about the current frequency of the child’s visits with the father was immaterial to the outcome and would not justify appellate interference (see De Winter and De Winter (1979) FLC 90-605).

3. That conclusion can be tested and proven correct in another way. The father was barely known by the child before July 2017, when the mother returned to Australia from India with the child to live and, since then, the child’s interaction with the father has been regulated by interim and final orders. Despite the belated start to the filial relationship, both parties now accept the child has a meaningful relationship with the father, which warrants him sharing parental responsibility for the child and the child frequently spending unsupervised time with him. Against that background it could hardly be contended the child’s meaningful relationship with the father will be compromised simply because he spends three to four weeks overseas with the mother. The mistake about the number of visits the child will miss with the father during that period will make no difference.

4. The alleged factual mistakes made by the primary judge about the net value of the matrimonial assets and the comparison of the mother’s standard of living in Australia and India were not mistakes at all. As to the first, there was no finding made and, as to the second, the finding was entirely concordant with the evidence.

5. The primary judge observed the parties’ assets had a potential net value of anything between zero and $190,000, depending upon the evidence elicited at trial (at [8], [35]). The father contended the assets had little or no net value, so his submission was not overlooked by the primary judge. Significantly, contrary to the inherent assertion of this ground of appeal, the primary judge made no valuation finding at all and, in the absence of any finding, made no error by simply observing the ambit of the factual dispute between the parties about the value of their property.

6. No factual finding was even possible because neither party adduced any evidence to enable the identification and accurate valuation of their assets. The father complained that the primary judge failed to take into account the contents of the financial statements previously filed by the parties in the proceedings, but neither party asked his Honour to do so. It was not up to the primary judge to rummage through the file looking for relevant evidence not relied upon by the parties. Even if the parties had relied upon their financial statements in the hearing, their submissions to the primary judge strongly implied the opinions they each expressed about the values of their assets and liabilities were irreconcilable. Their opinions of value certainly lacked probative value and, even if received in evidence, were certainly incapable of sensible rationalisation in the context of an interim hearing conducted in a duty list.

7. In any event, conscious that the factual dispute over the value of their Australian property might affect the mother’s motive to either return to Australia to obtain her share of it or to remain in India and abandon it, the primary judge concluded he could not entirely discount the possibility the mother would be sufficiently motivated by her interest in the division of the parties’ property to return to Australia (at [36]). When making decisions which are essentially predictive, heeding possibilities is entirely different from wrongly making factual findings either in the absence of or contrary to the evidence. Evidently, the mother’s possible motive to return to Australia to contest her property division entitlement was not a strongly persuasive factor in the decision, but to discount it altogether would have conversely amounted to an error by the failure to take into account a material consideration expressly relied upon by the mother.

8. In reliance upon the mother’s unchallenged evidence, the primary judge found her standard of living in Australia was better than in India. The primary judge accepted, as was open, that the mother has no assets or income in India, whereas in Australia, as a permanent resident, she is provided with housing, receives welfare income, and is paid child support by the father (at [20], [30]). The father did not, presumably because he could not, articulate why it was an error to so find on the available evidence. Although the father contended for error, he made no submission to the primary judge that those particular facts to which the mother deposed were false or ought not to be accepted, so it was hardly open for him to maintain the submission of error in the appeal in any event.

9. Ground 3 must fail.

Grounds 4, 5 and 6

1. These grounds were all abandoned at the commencement of the appeal and need not be considered.

Conclusion

1. The appeal should succeed.

2. For the reasons given, I make the following orders:

   (1)The appeal is allowed and Orders 2 to 7 inclusive made by Judge A. Kelly of the Federal Circuit Court of Australia on 18 March 2019 are set aside.

   (2)The Application in a Case filed by the respondent on 30 January 2019 is dismissed.

   (3)It is declared that any and all interim orders concerning the child, born in June 2016, under Part VII of the Family Law Act 1975 (Cth) made prior to the final orders of 1 August 2018 are discharged.

Costs

1. In the event the appeal was upheld for reasons which were unrelated to the father’s grounds, neither party sought costs against the other, but both sought costs certificates for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth). No certificates could be sought for a re-hearing because there is no valid application to remit for re-hearing.

2. Although the appeal succeeded on questions of law, the grant of certificates is still discretionary and, in the exercise of such discretion, their applications are refused.

3. In the case of the father, although his appeal succeeded, his pleaded grounds of appeal were misconceived and so his costs of the appeal were needlessly incurred. Even if the first limb of Ground 1 is generously considered to be directed at the appealable error, it was far from plain during the appeal and the point was even more obscure during the hearing before the primary judge.

4. In the case of the mother, she opposed the appeal and sought that it be dismissed. It was not until oral submissions in the appeal that her counsel conceded on her behalf that the appealed orders were made in error and there was no option but for the appeal to succeed and the orders to be set aside. The mother was not legally represented in the appeal until the day of hearing and so she had no costs to recoup prior to her engagement of counsel. However, her counsel’s concessions were not made until well in to the appeal.

5. The public purse should not bear the cost of the parties’ misconceived approach to the appeal, particularly when the appeal was only necessitated by the misconceived approach they both adopted before the primary judge.

6. I therefore make Order 4 as follows:

   (4)The parties’ application for costs certificates pertinent to the appeal under the Federal Proceedings (Costs) Act 1981 (Cth) are dismissed.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 May 2019.

Associate:

Date: 1 May 2019