Sterniotis and Valeska - [2011] FamCAFC 235

FAMILY COURT OF AUSTRALIA

STERNIOTIS & VALESKA

[2011] FamCAFC 235

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Appeal against orders of Federal Magistrate ─ Where the Court dealt with the appeal following the absence of an appearance by the respondent and the respondent’s failure to file any submissions as directed ─ Where the orders appealed against were made by consent – Where it was submitted that the best interests which are mandated by Part VII of the Family Law Act 1975 (Cth) (“the Act”) overarch the exercise of discretion even when consent orders are made ─ Where the orders made by the learned Federal Magistrate did not and could not secure the child’s safe return from Moscow to Australia ─ Where the appeal was entitled to succeed on the basis that the orders, when subjected to closer scrutiny than occurred or was thought to have occurred in the Federal Magistrates Court, it could not be concluded to be in the best interests of the child ─ Appeal allowed ─ Orders appealed against set aside

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the Court declined to grant costs certificates on the basis that the orders appealed against were made by consent at a time when the parties were both legally represented ─ Where although appealable error was involved, the parties led the Federal Magistrate into appealable error ─ No order for costs made

Family Law Act 1975 (Cth); Part VII

B v The Child Support Registrar (2006) 206 FLR 380

APPELLANT:

Mr Sterniotis

RESPONDENT:

Ms Valeska

FILE NUMBER:

SYC

951

2011

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

6 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

6 December 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 June 2011

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT:

N/A

SOLICITOR FOR THE APPELLANT:

James Papas Solicitors

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

Orders

That the appeal be allowed.
That orders 2 and 3 of the orders of 10 June 2011 be set aside.
That there be no order for costs.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 75 of 2011
File Number: SYC 951 of 2011

Mr Sterniotis

Appellant

And

Ms Valeska

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

By Notice of Appeal filed on 22 June 2011, Mr Sterniotis, (“the appellant”), appealed against parenting orders made by Federal Magistrate Kemp in proceedings between the appellant and Ms Valeska, also known as Ms G (“the respondent”), on 10 June 2011.
The matter came before the Court for directions on 12 September 2011. At that time, it was listed for hearing today. Mr Jurd, the solicitor who continues to appear for the appellant, attended. It is less than clear whether that attendance was in person or by telephone, and nothing turns on it in any event. Mr Ng, solicitor appeared for the respondent, the Court records suggest by telephone.
Apart from procedural orders made on that date, the matter was fixed for hearing this morning, and it was noted that the Independent Children’s Lawyer (“ICL”) may elect not to participate in the appeal, in which case the ICL was excused from appearing before the Court today. Subsequently, on 21 November 2011 a Notice of Ceasing to Act dated 17 November 2011 was filed by Mr Ng, who had hitherto appeared for the respondent. The Notice of Ceasing to Act was addressed to the respondent at her postal address, New South Wales. Whether or not it was also emailed to the respondent is unclear.
The address at her postal address, New South Wales, is an address which the respondent has used in affidavits filed in this Court as recently as 18 February this year. There is no evidence that the respondent does not continue to reside at that address. Sensibly, the solicitor for the appellant did not leave matters so that he would be solely reliant upon the Notice of Ceasing to Act having come to the attention of the respondent in order to prove that the respondent knew or ought to have known that the proceedings were before the Court this day. Given that she was represented when the matter was set down for hearing, it is reasonable to assume that the respondent would have been informed by her attorneys of the hearing date for the appeal. The Notice of Ceasing to Act does not reiterate that today is the hearing date, nor, looking at the pro forma Notice of Ceasing to Act, is there any provision for it to do so.
In his letter of 30 November 2011, in his capacity as the appellant’s solicitor, Mr Jurd informed the respondent that the hearing of his client’s appeal was listed before the Court this day, and made clear that the appellant intended to proceed. Appeal books had been served on or about 7 November 2011. That was within the times directed by this Court on 12 September 2011, and being one month clear of the hearing date for the appeal, allowed the respondent a reasonable time to respond.
The respondent has not filed any submissions, as the directions of 12 September 2011 provided that she or those representing her should. Mr Jurd has informed the Court, and the Court accepts his word in this regard, that neither his firm’s letter of 30 November 2011 to the respondent was returned by the postal service or his email directed to the email address, which is the email address used by her attorneys in the November 2011 Notice of Ceasing to Act, been returned or otherwise been unable to be sent to the respondent’s email address.
As Kirby J has observed on numerous occasions in the past in the High Court, natural justice is the opportunity to be heard. It is not an absolute requirement of natural justice that a person be heard. When, as the evidence establishes in this appeal, a party has every reasonable opportunity to participate in the appeal process, the failure to do so does not necessarily mean that proceeding to hear the appeal constitutes a denial of natural justice with respect to the party who elects not to appear.
Mr Jurd’s firm’s letter and email to the respondent provided a number of avenues, correspondence, email, telephone, by which the respondent could have communicated a problem with attending today, possibly referable to her young child, and possibly referable to other things. The respondent could have informed the Court if there was a problem. It is now 10.32am. The case was called outside the Court at approximately 10.10am.
The Court list contains a name, C, for the respondent. The court officer did not see anyone put that name on the list. It appeared on the list outside the court room. It is not a name known to the Court, nor to Mr Jurd, either in the context of this matter or otherwise. How the name got there is a mystery.
In the circumstances, the Court will deal with the appeal. For reasons which will follow, the absence of an appearance by the respondent, which necessarily renders the appellant’s task potentially easier than it otherwise might have been, will, if the appeal is successful, not visit upon the respondent any significant or enduring detriment. Why that is so will hopefully become apparent from what is about to be said in relation to the merits of the appeal.
The orders which give rise to the appeal were made by the Federal Magistrate, no doubt in the context of an onerous list of cases, by consent, at a time when the parties were both represented by experienced and competent legal representatives.
The Court can state with confidence that the orders which give rise to the appeal, orders 2 and 3 of the orders of 10 June 2011, are unlikely to have been made had the issue been agitated and determined by the Federal Magistrate. At the very least, they would not have been made in the absence of the maternal grandparents, that is to say, the parents of the respondent, being parties to the proceedings, and in all probability, being either within, or otherwise amenable to the jurisdiction of the Court. Some background to the orders is appropriate.
Without suggesting that the allegations of fact are necessarily true where they are or could be controversial, the following matters which emerge from an affidavit of the respondent provide background to the appeal. It may be that the appellant’s version of disputed events will ultimately, if tested, be favoured if a Court needs to determine those issues. But, given that the respondent is not present, the Court prefers, for the purpose of this appeal, to have regard to relevant facts which emerge from the respondent’s affidavit so that the risk of proceeding in reliance upon facts asserted by the appellant and disputed by the respondent cannot arise.
The parties are the natural parents of the one child of their former marriage, E, also known as K. The child was born in September 2003. She is accordingly eight years of age. The parties were married in 2002. They were divorced in April 2010. The decree nisi for dissolution of marriage became absolute in May 2010. In October 2010, the respondent married Mr G. The respondent deposed to expecting a child of that union on or about March 2011. The child has apparently been born subsequent to that date.
For reasons which the respondent asserts, and which relate largely to allegations of violence and abuse by the appellant, the respondent, whose ancestry is Russian, sent the child E to Russia to live there with her parents in about May 2008. So doing, is alleged by the respondent to have been consensual. The document attached to her affidavit purports to be the consent of the appellant, and appears to refer to a period, 16 July 2008 to 16 July 2015. The purported consent, appears to have added to it some colourful words of the appellant which he may or may not have added to the document.
There does not seem to be any doubt that since May 2008, the child has lived with the respondent’s parents in Russia. It seems that the appellant and the respondent are both desirous of securing the child’s return to Australia, the practical effect of her absence being that the child does not spend time with either of her natural parents. How realistic that might be, given the age the child was when she went to Russia, the time she has now spent being cared for by her maternal grandparents and apparent paucity of time she has spent with either of her natural parents, suggest that securing the child’s return to the jurisdiction may not be simple or straightforward, either as a matter of law or a matter of the child’s best interests. What, if any rights the maternal grandparents may have, or seek to assert under Russian law is not known to the Court.
The orders of 10 June 2011 were made by consent. That, as the submissions on behalf of the appellant make clear, is not necessarily a bar to a successful appeal. Fundamental to that proposition is the solicitor for the appellant’s contention that, whilst the matter of consent, particularly, informed consent, where parties are legally represented, to use the colloquial, lowers the bar in terms of the exercise of discretion, the best interests which are mandated by Part VII of the Family Law Act 1975 (Cth) (“the Act”) overarch the exercise of discretion even when consent orders are made.
Whilst quite properly, Mr Jurd was at pains in his submissions to refrain from criticising the Federal Magistrate, and fairly acknowledged that his Honour was no doubt influenced by the burden of his work for the day, the fact that the parties were represented by experienced and competent practitioners, and had made the orders with what is submitted to have been an understandable absence of scrutiny of the orders. It is submitted, correctly in this Court’s view, that, had the learned Federal Magistrate closely scrutinised the orders, or been asked to do so, it is improbable that they would have been made.
That is not necessarily conclusive of the issue. Indeed, if these were financial proceedings, the appellant would be unlikely to be successful in the circumstances surrounding the making of the orders which give rise to this appeal. But, the submission that the requirement of best interests of the child overarches the exercise of the Court’s powers under Part VII of the Act, even when those powers are sought to be exercised on a consensual basis, resonates with the Court.
Understanding completely that the temptation to make these orders in the terms sought by the parties and their attorneys would probably have been irresistible, the reality is that, on such evidence as there was before the learned Federal Magistrate, closer scrutiny of the orders reveals that they are not, and were not, when made, in the best interests of the child. There are a number of reasons why that is so. They all stem from the terms of the orders and their effect.
Orders 2 and 3 made on 10 June 2011 by the learned Federal Magistrate provide as follows:
2.Upon the maternal grandparents, being [Mr V] and [Ms V], providing a written undertaking to the Court to the following effect:
a.   that the passport of the child [E] born [in] September 2003 (“the child”) is to be used only for the purpose of travel to Australia, and will be returned to the Sydney Registry of the Federal Magistrates Court within 48 hours of the child’s return to Australia;
b.   that a separate residence to that of the applicant mother, will be established by them in Sydney, for the child to reside with them, pending further order;
c.   that at least one maternal grandparent will remain in Australia for at least six (6) months; and
d.   that the maternal grandparent or grandparents so remaining in Australia, and living with the child in Sydney, will consent to be joined as a party to the proceedings,
then the passport for the child, [E] born [in] September 2003, may be released to them by the Australian Embassy in Moscow, upon production of an airline ticket showing the child’s proposed travel to Australia, to be sighted by an officer of the said Embassy.
3.The Sydney Registry of the Federal Magistrates Court, upon receipt of the Australian passport of the child, will forward the same to the Australian Embassy in Moscow, to be held by it pending compliance with order 2 above, and a copy of these orders are to accompany the passport.
It is apparent that the scheme of the orders which the parties agreed to, although given the time between the orders and the filing of the Notice of Appeal, the appellant fairly swiftly had second thoughts about them, was that a passport which the unchallenged orders of the Federal Magistrates Court of 11 May 2011 provided for (see order 4), be issued to the maternal grandparents. Such passport was otherwise to be held by the Registrar of the Federal Magistrates Court pending further order of the Court.
The maternal grandparents are Russian nationals. They are domiciled in and ordinarily resident in Russia. Whether they have ever been to this country is less than clear, but the Court has no clear recollection of having read in any of the evidence filed in the Federal Magistrates Court any suggestion that the maternal grandparents have any real or substantial connection with the Commonwealth of Australia. The orders provided that the passport currently held by the Registrar of the Federal Magistrates Court, and uncontroversially ordered to be so held, by that court on 11 May 2011, be issued to the maternal grandparents upon their providing a written undertaking to the court with respect to four matters.
The four matters the subject of the undertaking were logical. The difficulty, however, is that, as the Court interprets the orders, it was upon providing a written undertaking to do the four things identified in the subparagraphs of order 2 made on 10 June 2011, and the production of an airline ticket showing travel to Australia, that the passport could be released to the maternal grandparents by the Australian Embassy, in Moscow. The orders further provided that the Registrar of the Federal Magistrates Court would then facilitate the receipt by the maternal grandparents of the child’s passport. The Court construes the preconditions referred to in order 2 as being satisfied by the giving of an undertaking. Some of the conditions precedent in order 2 could not have been satisfied in fact unless and until the maternal grandparents secured the child’s travel from Russia to Australia.
As the solicitor for the appellant submitted, and it is pivotal to his submissions, the orders are not binding and could not be binding upon the third party maternal grandparents. The orders did not and could not secure the child’s safe return from Moscow to Australia.
In reality, the maternal grandparents could comply fully with the terms of order 2, but once in possession of the child’s passport, travel with her to wherever they chose, in circumstances over which this Court would have no effective control, assuming, which it cannot be, that the parents of the child, and the appellant in particular, would have any means of knowing what was or was not happening with the child in any event. The Court is not aware of any evidence of the means of the maternal grandparents or of any security or bond, or the prospect of any security or bond.
As the solicitor for the appellant submitted, whilst, in theory, the Court had jurisdiction with respect to the child, whether or not that should have been exercised is problematic. The child is and has for three and a half years lived in a foreign country. The general approach, and the Full Court’s decision in the case of B v The Child Support Registrar (2006) 206 FLR 380, involving New Zealand is a case in point, has historically been to recognise the reality, that is, it is the law of the place where a child is ordinarily resident, particularly in countries which are not signatories to the Hague Convention, which is the most appropriate law governing parenting issues for the child.
There is something artificial about litigating parenting issues in a country where the child is not resident, not the least of that artificiality being referrable to the fact that in the foreign country it may be that those with whom the child is resident have rights under the laws of that country, and that those rights are more readily enforceable than orders made in this country with respect to the child in a foreign jurisdiction would be. It is unnecessary to speculate about those matters, and sufficient only to record that the appeal is entitled to succeed on the basis that the orders, when subjected to closer scrutiny than occurred or was thought to have occurred in the Federal Magistrates Court, cannot be concluded to be in the best interests of the child.
The aim of the orders was admirable, that is to say, to secure the child’s return to the jurisdiction. The difficulty is that, for the reasons which have been stated, the orders will not necessarily have that effect, and may, indeed, clothe the maternal grandparents with the indicia of authority in the form of an Australian passport, which could, were they minded to, enable the maternal grandparents to act in a way quite incompatible with the child’s best interests. For those reasons, in the unusual circumstances of this appeal, and reiterating that allowing the appeal in no way implies any criticism of the learned Federal Magistrate, the orders of the Court will be that orders 2 and 3 of the Federal Magistrates Court of 10 June 2011 are set aside.
The Court makes no order for costs. The Court declines to grant costs certificates on the basis that the orders were made by consent at a time when the parties were represented. It can be assumed that the parties would have been advised of the difficulties. As the Court’s reasons for judgment make clear, although appealable error was involved, the parties led his Honour into appealable error. In those circumstances, it would be inappropriate to grant a costs certificate.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 6 December 2011.

Associate:

Date: 15.12.2011