Tabano and Yabon (No 2)

[2020] FamCA 831

FAMILY COURT OF AUSTRALIA

TABANO & YABON (NO. 2) [2020] FamCA 831

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father’s wife refuses to disclose her residential address and that of her sister – Where the 13 year old child is said to be living with the wife’s sister – Where the current orders provide for the child to live with the mother – Where the Independent Children’s Lawyer presses for disclosure of the addresses.

Family Law Act 1975 (Cth)

APPLICANT: Ms Tabano

RESPONDENT: Mr Yabon

INDEPENDENT CHILDREN’S LAWYER: Gary Rolfe

FILE NUMBER: BRC 8367 of 2016

DATE DELIVERED: 1 May 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 1 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Jurgensen Horne Lawyers

THE RESPONDENT: Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Rolfe
Gary Rolfe Solicitors

Orders

1. That as soon as Court adjourns for the afternoon today, the father shall send an email to the Judge’s Associate, the Independent Children’s Lawyer and to the mother’s solicitors, setting out in writing his residential address, ie the place where he and his wife and their children live, and the residential address of Ms P.

2. That those addresses shall not be provided in any form, either orally or in writing, to the applicant mother or her husband, Mr V, without an Order of this Court or the written consent of the respondent father.

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 Tabano & Yabon 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).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8367 of 2016

Ms Tabano

Applicant

And

Mr Yabon

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. This case is now officially on its fifteenth day of trial before me, though two of those days were effectively lost due to the illness of the respondent father, (who was represented on one of those days but who is now unrepresented and who was unable to appear due to illness on two of the days).  Accordingly, whilst it is officially the fifteenth day of the trial, it is the thirteenth day on which the trial has run through to a concluding day. This trial was originally set down before me for five days after it was transferred up to this Court from the Federal Circuit Court, where it had been progressing as a parenting trial effectively, really for three years, since 2016 to 2019. In that Court, it was listed before one of the judges for a three day trial in December 2019, so it seems as if everyone was wrong about how long the trial was going to take. 

2. The dispute between the parents is a parenting dispute only now, relating to three of their children, namely X who is recently turned 13, Y who is about a year or so younger than her sister X, and the younger brother, Z, who is a couple of years younger than his sister, Y. 

3. The litigation really has been going on in earnest between the two parents since February 2018, the parties having in December of 2017 reached agreement about parenting and property matters, the terms of which were made subject to orders that were made with their consent by his Honour Judge Baumann (as his Honour then was as a Judge of the Federal Circuit Court).  Those years since that consent order was made have been characterised by little other than what can be described as high conflict and turmoil between the parents, and I have to add, their partners, to which these three children of their marriage have unfortunately been subjected.

4. Without going into the full history at this stage, (much of that will be dealt with in my final reasons for judgment when I finally decide this matter), in July last year, 26 July 2019, her honour Judge Purdon-Sully made an order that the three children be returned to live with their mother after a period of about 15 months, where they had been living principally in the care of their father following orders made by another judge of that court in February 2018.  Not only though did Judge Purdon-Sully order that the children return to live with their mother, she granted the mother sole parental responsibility and she made orders that the children have no contact with the father until at least the matter went to trial.

5. Just over a month after her Honour’s orders, the eldest child X, still then only 12 years of age, ran away from home into the immediate care of her father and stepmother who happened to be in the vicinity of where the mother and the children were living at the time and where the child had run away, though they do not live in the same vicinity.  The child then the next day, because of the orders apparently that provided that the father was to have no contact with the child, was placed by the father and his wife into the care of a family friend, a female person who is a friend of the father’s wife, known to the father as well and known to the three children.

6. An application was made by the mother for a recovery order before her Honour Judge Purdon-Sully in whose docket the matter was at the time, proceeding to trial. Around the same time, the father to my knowledge, filed an Application in a Case seeking interim orders that all three of the children be placed in his care.  That was unsuccessful and a recovery order was made.  X was recovered and returned to the care of the mother. 

7. My understanding is that within weeks she ran away from the mother’s care again.  On this occasion I understand she went into another adult’s care, not the same person who cared for her before, but again another adult within the sphere of influence of the father and his current wife.

8. A further application for a recovery order was made again. I will have this chronology more accurate in my final judgment, I am just doing this from the top of my head from memory and from all the documents I have read.  A recovery application was heard by another judge, Judge Tonkin of the Federal Circuit Court, and she, too, made the recovery order that was sought by the mother and the child, X, was returned again to her mother’s care. 

9. There was at least another occasion not long thereafter where the child ran away, another recovery order application was made by the mother, again the child had gone into the care of another adult or adults within the father’s sphere of influence. The recovery order was made and as I understand it, Judge Purdon-Sully then recused herself from the matter around that time, vacated the trial dates that she had established in December, then transferred it to this court. The children were returned to the mother’s care again.  Within again a short space of weeks the child ran away from home again and into the care of another adult within the sphere of influence of the father. 

10. The matter then being in this Court’s registry files, it came before me.  On 10 December 2019, I ordered a recovery order issue but before that recovery order was executed, I gave the father the opportunity to have one telephone call with his daughter and try to persuade her to return to her mother’s care voluntarily to avoid the drama of police having to go around and collect her to take her back to her mother’s place.  That apparently happened because, from memory, the Court was told in accordance with the order that was made that the child had been returned and the police did not have to execute the warrant. 

11. On 10 December, when I made those orders, I was also persuaded that this matter had such a history and such conflict and that the turmoil and drama affecting these young children, particularly X, and her life, was such that the matter needed to be expedited for a hearing and given a hearing as soon as possible.  One of the things that persuaded me to that was my understanding, I do not think it was a disputed issue, that whilst X was in the care of these adults who I have referred to as being in the sphere of influence of the father, she was not attending school and to me that was a terrible situation for X to be in and one of the things requiring the expedition of the hearing for. 

12. So, the matter proceeded to trial and began a few weeks ago.  Upon reading the evidence and commencing the trial, it became clear that sometime in the recent weeks leading up to the start of the trial, young X now 13, having turned 13 between my order and Christmas 2019, had run away again. 

13. On the day that I made orders in December I made orders that also restrained each of the adults who the court was told were in the sphere of influence of the father and who had sheltered and cared for the child whilst she was run away from home on the previous occasions, be restrained from effectively facilitating that sort of thing again.  The Court was told that on this occasion she had not run to any of those people, but she had run to or was being cared for at least by a woman by the name of Ms P, who it is not in dispute, is the sister of the father’s current wife, Ms T. 

14. For a reason that is not yet known to me, the mother did not bring an application to the Court in those few weeks between the child running away again and the trial starting for a recovery order and the trial commenced and got underway.  It has become clear that the dispute effectively between the parents is one that has the father asking for orders that all three of the children live with him and have very limited time with their mother, supervised in the first instance for some indefinite period of time until she is able effectively to prove herself to him or to someone before she is allowed to have unsupervised time with the children and for their time, if any, that they spend with their step-father, the mother’s new husband, to be supervised, again indefinitely. 

15. On the mother’s part, she asks the Court to make orders that all three children live with her and not spend any time with their father at all.  Anyone reading these reasons would immediately appreciate the difficulty of the decision that confronts the Court.  Either way, with the orders that each parent asks for, the other parent who does not get the orders that they ask for, is going to be extremely disappointed and distressed. If the Court makes the orders that the father seeks, the children’s contact with their mother will be severely restricted and if the court makes the order that the mother seeks the children’s contact with their father will be non-existent.  So it is a very difficult decision that the court has to make. 

16. Now, the father and his current wife have both in their affidavit material been unwilling to disclose their current residential address.  The father apparently, and I do not even have a recollection of it, in the early part of the trial either sometime in the first ten days or so, did disclose his residential address though he says he did so inadvertently.  I do not remember it and I certainly did not write it down.  I do not know whether or not the mother and/or her partner did. 

17. However, the situation has become far more relevant and pertinent when his current wife began to give evidence.  She told the court when she was asked by me after I swore her in that she did not want to disclose her residential address.  As reasons for that, she deposed to the fact that she is scared of the mother and the possibility that the mother might visit or cause visits upon her that might cause her and her family some harm or, significantly, she said she was scared of the mother’s partner and that he might visit her family and cause her and her family some harm.  At the time, the father supported her request not to disclose her address and I considered at the time that there was no need to order her to disclose her address despite some initial protestations by the barrister representing the Independent Children’s Lawyer.  Now, counsel for the Independent Children’s Lawyer who is close to finishing his cross-examination asked the father’s current wife would she disclose the address of her sister at which the child is said to be living.  She has said that she will not do that unless she is ordered to by the Court. 

18. After the father’s current wife said she refuses to divulge the address of her sister at which the child X is said to be living, the Independent Children’s Lawyer effectively made application to the Court for me to make that order.  On hearing the father on that, he has submitted to the court that his wish and his wife’s wish not to divulge their address be respected and their wish not to divulge the address of his wife’s sister at which X is said to be living be respected at this point in time and particularly and not to be divulged to the mother and Mr V.  He proposes to the court that they simply be required to provide those addresses in writing in email form to the court. His concession goes as far as saying it could be provided to the Independent Children’s Lawyer and to the mother’s legal representatives but on the condition that those addresses not be provided, until further order of the court, at least, to the mother and/or Mr V, her partner. 

19. In response to that, Counsel for the ICL opposes that and says that the address, particularly of where the child is living but also the address where the father and his current wife are living, should be disclosed openly and publicly and the mother should be entitled to have those.  Just at this point in time, the mother is not asking for a recovery order and has not, and I suspect she has not done that out of respect for the court process and the fact that we are going through a trial. But the father wanted to know what her reason was and an explanation for that and I have asked her barrister for that and I expect that will be forthcoming.  Nor has the Independent Children’s Lawyer actually asked for a recovery order at this stage and I do not heed to ask his counsel why the Independent Children’s Lawyer has not done that at this stage. I do not consider that matters.  The trial is getting close to finishing and the woman who is the father’s wife’s sister, is going to be a witness in the case and questions could be asked of her in the same way as to whether she is reluctant to give her address. That remains to be seen. 

20. At this point in time, and on the evidence before me at the moment, just a few days out from the finalisation of the hearing, the finish of the trial, I am not minded to make any sort of recovery order. So in those circumstances, I do not consider it absolutely necessary for the mother and/or her husband to just get to know the whereabouts of X.  I appreciate the submission and the strength of submissions that Mr Linklater-Steele makes – that the mother has an order in her favour, that the child live with her, that she has sole parental responsibility, that she has applied to the court several times for recovery orders and got them. There is strength in the submission that she is entitled to know exactly the address at which her daughter is living, though, as I said before, I suspect she is respecting the Court process and not asking for a recovery order and I expect that she would respect the court process such that she would not even attempt to go around and try and take X into her care whilst this trial is going on even if she was provided with the address. 

21. In all the circumstances, whilst this matter is not yet finished, I am prepared to respect the expressed views of the father and his wife that they do not wish to reveal their own personal address though the father says he already had inadvertently. I will respect their views that they do not want to be the ones revealing where Ms P lives, where the child is said to be at the moment.  I acknowledge the apparent concession by Mr Yabon that he would be prepared to provide those addresses in writing via email in any event on the condition that the mother not be given them, and, in the circumstances, that is the order that I will make.

22. Having heard the submissions of Mr Linklater-Steele, I particularly want to say on record as part of these reasons, this decision is not be considered to be any sort of tacit acceptance of the validity of expressed fear or concern of the father, more particularly of his wife. Indeed when asked for some more explanation about the basis of her fear of the mother and Mr V, she pointed particularly to what she said was a threat that Mr V made at one of the handovers of the children in 2017 where she alleges that he said something like “the hole just got deeper”. 

23. Now, even if he said that, there are a number of possible explanations.  One could be he is talking about the father’s wife. She might possibly be entitled to think he is talking about a grave into which he might put her. The other, if he did say it, (and I do not even remember if he was asked if he said it or what he said about it, I would have to look back or hear submissions about it later) - one other possible explanation is that he might have been suggesting “the hole that you are digging yourselves”, which is a colloquial expression, “you are digging yourself a deeper hole” – just got deeper, meaning the father and his wife were just making things harder for themselves.

24. When given the opportunity, the father’s wife did not point to anything else. As Mr Linklater-Steele said, there is no evidence that the mother has gone around to their home and caused any problems or gone to the homes of any of the people at which X is staying or attempted to try and go to the home at which X is staying at the moment.  That I accept. There is no such evidence. 

25. The other part of the evidence that is important about this and makes it difficult at this stage, prima facie, to say I accept there are valid grounds for the fear expressed by the father’s wife, is that several months or within several months of the occasion when it is alleged that Mr V threatened the father’s wife, they, that is the father and his wife, invited the mother and Mr V to come to a baptism of their son and the son of the mother and the father, Z, at a church. The mother says that she was not invited. They say they invited her. I am not determining that at the moment, but, prima facie, at this point, if the father and his wife are telling the truth about that when they say they invited the mother and her partner to the church, when they say they invited them back to their house for socialising afterwards, to have drinks, cakes, to wet the head of the child as they say in the vernacular, that suggests no such fear on the part of the father and his wife. There was also an occasion just prior to the baptism when both the father and his wife went in their car to the mother’s house to return all three children to them. They took along their young baby boy who was in the car. That would suggest no such fear of the sort that would require you to hide our address or not disclose your address in the circumstances. 

26. I do not want my decision at this stage to be interpreted in any way as accepting the validity of the expressed fear, but in my view the immediate impasse is easily satisfied by accepting the father’s preparedness and concession to send the addresses through to the court and to the other parties by email and I shall order accordingly.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 1 May 2020.

Associate:

Date:  30 September 2020