SAMPSON & HARTNETT

[2014] FCCA 111

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMPSON & HARTNETT [2014] FCCA 111

Catchwords:
FAMILY LAW – Children – application in a case – application to re-open proceedings after evidence finalised.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS SAMPSON

Respondent: MR HARTNETT

File Number: SYC 526 of 2013

Judgment of: Judge Scarlett

Hearing date: 17 January 2014

Date of Last Submission: 17 January 2014

Delivered at: Sydney

Delivered on: 17 January 2014

REPRESENTATION

Counsel for the Applicant: Mr de Robillard

The Respondent: In person

ORDERS

1. The Application in a Case filed on 13 January 2014 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sampson & Hartnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 526 of 2013

MS SAMPSON

Applicant

And

MR HARTNETT

Respondent

REASONS FOR JUDGMENT

1. This is an Application in a Case brought by the mother of two children to reopen the evidence in an application by the father seeking, in effect, orders relating to two issues: 

   a)the obtaining of passports for the two children; and

   b)the removal of an order contained on what is now called the Family Law Watch List maintained by the Australian Federal Police restraining either of the parties from removing either of the children from the Commonwealth of Australia.

2. It must follow from this substantive application that this would involve the Court making a decision as to whether the children, in whatever circumstances the Court thinks fit, be permitted to be removed from the Commonwealth of Australia and to be permitted to travel internationally. 

3. The specific application by the father, which was brought on 4 December 2013, does not refer of itself to the details of any proposed trip outside Australia, but from the evidence it has been established that the father intended to take the two children with him to (country omitted) to stay with some friends who live in (country omitted) during the time that the children were spending time with him during these school holidays.

4. The children were to have spent time with him from early January through until the end of the school holidays which, on the evidence before me in the substantive application, would have come to an end immediately after the Australia Day public holiday weekend. 

5. Considering that, with the course of events, the case has now reached 17 January, it would seem that this opportunity for this particular proposed trip seems to have gone.  The application was originally before me on Tuesday, 7 January.  On that date, it was mentioned and there was some degree of argument.  Counsel for the respondent sought an adjournment and the matter was adjourned until 9 January. 

6. Over the intervening period of time, the mother deposed to an affidavit which was filed on 9 January.  The matter was heard, in full, on Thursday, 9 January.  Counsel for the respondent mother forwarded submissions to the Court on the morning of Monday, 13 January, as he indicated that he would.

7. The mother also brought an Application in a Case, which is this application, accompanied by an affidavit, seeking to reopen the evidence on the basis that material was available that would assist the Court in deciding the substantive matter, such material not having been available before that time. 

8. The application to reopen is opposed by the father, who filed a response and an affidavit by himself and another affidavit by one Ms E, a resident of the (country omitted).  I indicated at the commencement of the submissions today that it appeared to me that Ms E’s affidavit went more toward the substantive case, if leave were given to reopen, rather than the application to reopen.

9. The father has this afternoon pressed me to reconsider that decision and has referred me to certain paragraphs of the affidavit. However, I am not persuaded that I should change my view.  The mother’s affidavit relates to a number of issues which were elaborated on by her counsel in submissions this morning.

10. Essentially, it appears that there are five matters that are considered to be relevant.  Counsel for the respondent mother, or the applicant in this application, put some 21 points, but it seems to me that the evidence sought to be reopened would include matters in five basic categories.

    (1)That since the evidence was heard on Thursday, 9 January, the father himself travelled to (country omitted) in the course of his employment. 

    (2)That the school holiday period of time for the children of Ms E and her husband in the (country omitted) concluded and the children were required to return to school by 13 January, ie, last Monday.

    (3)That the mother has had, and continues to have, a considerable degree of difficulty in contacting the children by telephone or other electronic means whilst they are in the care of the father. 

    (4)That the mother, with the aid of a travel agent, was able to make a booking for a flight to (country omitted) without the production of a passport or a passport containing a visa or a particular form of electronic visa which is now required for entry into the (country omitted). 

    (5)In her affidavit the mother expressed her concern that whilst the father was in (country omitted), he may have used illegal drugs and she seeks an order that he submit to drug testing.

11. What the Court must do is, in the light of the evidence that has been taken, consider this fresh evidence to see whether it is sufficient to justify reopening the proceedings.  The evidence is contained in the mother’s affidavit which was sworn and filed on Monday the 13^th at the same time as the application.

12. The affidavit sets out that the mother seeks leave to reopen so that she may submit evidence in reply because it was only after the hearing, and then on 10 January, that she was able to establish that, in her view, the father’s evidence was misleading.  She referred to the Ms E children’s school holidays, and the conclusion of those school holidays, and refers to the school’s website. 

13. She referred to the need to obtain, or otherwise obtain, a form of electronic visa and annexes an invoice from a travel agent relating to a booking for travel on 23 January in her name with the payment said to be due on 13 January. 

14. She refers in her affidavit to a gala dinner which took place in (country omitted) on 11 January and the husband’s evidence about it.  She annexes a copy of a Facebook entry, indeed showing the father present at a function which appears to have taken place in (country omitted) on Friday, 10 January.

15. Also annexed is a copy of a newspaper article by one Ms D relating to various Australian celebrities attending a party in (omitted) on 8 January 2014, illustrated by photos of (omitted) and (omitted).  There is a reference in the article to other people involved in the (omitted) business.

16. The mother’s affidavit indicates her wish to issue further subpoenas.  It indicates a dissatisfaction with the father’s failure to advise the Court or herself that he would be travelling to the (country omitted) for this trip. 

17. The affidavit refers to the mother’s attempt to telephone or to call the children on their iPods, although unsuccessfully, and expresses concern about the person in whose care the children were left while the father was in (country omitted).

18. It also refers to her concern about the father using illegal drugs whilst in (country omitted) and requesting that the father should submit himself to an appropriate drug test immediately upon returning to Australia.

19. The submissions were quite lengthy and there is a reference to the considerable litigation history between the parties.  The substantive matter that this Court has to determine relates to the discrete issue of the children:

    a)Being issued with Australian passports; and

    b)Having their names removed from the Family Law Watch List.

20. Whilst there are other parenting proceedings in the background, they are not matters which I have been asked to hear.  As I indicated, it is the onus of the mother to persuade the Court that the proceedings should be reopened.

21. The evidence is quite clear that the father did travel to (country omitted) for a short period of time after the proceedings were heard.  Indeed, there are photographs forming part of annexure C to the affidavit showing the father and other person.

22. The annexure A, the article about the activity referred to as the (omitted) party at which (omitted) and (omitted) attended does not refer to the father.  Certainly, on its face, it shows that that function took place on 8 January this year.  The father was present in this Court for a large part of the day on 7 January and for the entire day, until well after 5 pm, on Thursday, 9 January.

23. With the operation of the International Date Line, of which I can take notice, it appears to me that it would have been impossible for him to have travelled to (country omitted) and return between 7 January and 9 January.  It is fair to say that he has an alibi, and the alibi is his presence in this Court.

24. There is, however, evidence that he attended a function on 10 January and, with the operation of the International Date Line, and as is well known, the length of time that it takes aircraft to fly from Sydney to (country omitted), it was quite possible for him to attend.

25. There is no evidence that he attended with the children.  Indeed, as they have no passports and their names are held on the Family Law Watch List, they could not have travelled with him;  they would have been unable to leave Australia.

26. The evidence of the mother’s having made a booking of sorts for a trip to the (country omitted) with a particular airline, without apparently having to produce a valid passport containing a visa, has been the subject of some discussion.  What it is is a tax invoice for a flight.  The mother is not prohibited by any order of this Court or the Family Court from travelling to (country omitted).

27. The importance of this document should not be overstated.  It appears to show that it is possible to make a booking on a flight without production of a physical passport or the appropriate visa.

28. However, it provides no proof whatsoever that it is possible either (a) to be permitted to board the aircraft or (b) to be allowed entry into the (country omitted) unless one has a valid passport and unless one is permitted, or that a child is permitted, to depart from Australia because there is no restriction placed on the Family Law Watch List.

29. It appears to be an attempt to manufacture evidence as there is no evidence, or as it is not suggested that the mother is seriously intending to travel to (country omitted) on 23 January or to return on 3 February, as the tax invoice suggests. 

30. Annexure D, I should say, is also a photograph of the father and a person, presumably a woman by the name of (omitted), taken at a function in (country omitted).  This appears to have been taken from a Facebook entry.

31. But it is not the application before the Court that the father should be permitted to leave Australia and go to the (country omitted) and return.  It is his application that the children should be allowed to travel internationally by removal of a prohibition on the Family Law Watch List and by their being granted Australian passports. 

32. In my view, the evidence does not throw any greater light on that issue.  Certainly, it has been put that the mother has great concerns about the reliability of the father’s evidence and she is dubious about what information he does or does not provide about his movements, and more particularly, the children’s movements.

33. Presumably, that is one of the reasons why there is a reference to the school holidays for the children in (country omitted) and concerns expressed about her inability to speak to the children whilst they are in their father’s care.

34. I can indicate there is no evidence that would lead the Court to form the view that the father may have used illegal drugs on his recent trip to the (country omitted) sufficient to require him to submit to any form of chain of custody drug test.

35. What then is the strength of the application to reopen the proceedings?  What evidence is there that is of such importance that requires its admission in order to decide the particular issues of the removal of the children’s names from the Watch List, their being permitted to obtain Australian passports and, consequently, permission in general for their being able to leave Australia in the care of one or other parent.

36. As I said, there is no specific application before the Court for the children to leave Australia on a particular date, travel to and remain in a particular place and return to Australia on a particular date.  It follows that that’s what the father wishes to do, but that is not what is sought.  I am not of the view that the evidence sought to be led justifies the reopening of the proceedings.

37. Consequently, it is not relevant, nor is it appropriate, to consider the affidavit of one Ms E of 16 January 2014, and, indeed, it is not appropriate for the Court to give weight to any aspect of the father’s supporting affidavit of today’s date, other than that which goes to his opposition to the reopening of the evidence.  The application in a case filed on 13 January 2014 is dismissed.

38. That now brings me to another issue, or perhaps another set of issues.  What this means is that the evidence relating to the father’s substantive application was completed at the end of the hearing on Thursday, 9 January. 

39. Submissions have been made to the Court on that evidence.  It is that evidence that will be considered.  The further evidence led for the purpose of this application will not be considered for reasons that are, I think, quite obvious.

40. There is, however, another matter that has caused me some concern and it is of sufficient concern that I wish to put some questions and seek an explanation from Counsel for the mother, and I am referring to the mother’s affidavit sworn and filed on 9 January, which was used in the proceedings for the substantive application.

41. The particular paragraphs of that affidavit are referred to in passing in the written submissions by counsel for the respondent.  They are paragraphs 18 to 26 under the heading Concerns Arising Out of the 7 January 2014 Directions Hearing.  Those paragraphs set out the mother's statement of her concern and worry to have heard certain matters from her counsel about matters that took place in Court on 7 January when I acceded to the application of counsel for the mother for an adjournment and for time to allow the preparation of an affidavit. 

42. I have read through these paragraphs.  I have also considered the transcript of what took place on 7 January, and there are two things that are abundantly clear to me.  For a start, the account of what took place in Court on 7 January, insofar as it is relevant at all, is highly inaccurate.  Second, coming as it does from the respondent, who was not there, and retailed to her by her counsel, it is quite clearly hearsay.  It must follow that paragraphs 18 through to 26 have no evidentiary value at all. 

43. If these paragraphs have no evidentiary value at all, what then is the purpose for which they were included in the mother's affidavit?  On reading them through, as I have done on a number of occasions, I cannot see a legitimate forensic purpose.  I have concerns that those paragraphs appear to have been included for an improper purpose.  Whether that purpose is an attempt to persuade the Court to decide the matter other than on evidence relevant to the substantive application, or to persuade me to disqualify myself from the proceedings, I do not know.  Either of those purposes would be a highly improper purpose which require an explanation.  If the purpose is only to set up a possible appeal point based on an allegation of bias, whether actual or apprehended, it appears to me that this is also an improper way to do it. 

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  24 January 2014