Tabano and Yabon (No 3)

[2020] FamCA 923

FAMILY COURT OF AUSTRALIA

TABANO & YABON (NO. 3) [2020] FamCA 923

FAMILY LAW – CHILDREN – Interim – Where a parenting trial was conducted over nineteen days in March to May 2020 and judgment is reserved – Where the father applies to the Court for interim orders for sole parental responsibility and for the three children who are the subject of the proceedings to live with him – Where the mother and the Independent Children’s Lawyer oppose the application – Where it is not appropriate to make fresh interim parenting orders whilst judgment is reserved.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the father seeks the Court refer the mother and her affidavit to the Attorney-General to consider prosecuting her for offences under the Criminal Code 1899 (Qld) for perjury or fabrication of evidence.

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: 3 November 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 2 November 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Jurgensen

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 Solicitor

Orders

1. That the father’s Application in a Case filed 1 October 2020, is dismissed.

2. That all other oral applications made by the father during the course of the hearing on 2 November 2020 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 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

REASONS FOR JUDGMENT

1. This is the determination of another Application in a Case whilst my judgment in respect of final parenting orders remains reserved after a nineteen day trial that concluded in early May this year. Already, on 5 August, I dismissed competing applications of the mother and the father for interim orders in respect of the subject children whilst my final judgment remains reserved. I gave written reasons at the time and made a couple of interim orders. 

2. On 1 October, the father e-filed a fresh Application in a Case.  About a week later, the Court received an Application – Contravention that the father sought to have filed and listed on an urgent basis. On 16 October I directed that the contravention application be filed and that both applications be listed before me for hearing on Monday, 2 November 2020.

3. At the hearing, the father confirmed that he wanted to cross-examine the mother in respect of the contravention application. He appeared without legal representation, and due to the applicability of s 102NA of the Family Law Act 1975 (Cth) to the matter, there being existing family violence orders between the parents in this case, the Court had no choice but to make orders directed to the Legal Aid Office of Queensland and to adjourn the contravention matter to a Registrar in March for further directions. The father was informed that, at least in my preliminary opinion, at least one, if not more, of his alleged contraventions was doomed to fail. The father acknowledged being told that and then told the Court that he would take legal advice in due course.

4. The hearing of the Application in a Case proceeded. The mother was represented by her solicitors and the Independent Children’s Lawyer (“the ICL”) was represented by counsel.

5. The father’s Application listed nine orders that he was seeking. At the commencement of the hearing, the father told the Court that he wished to orally amend those. Significantly, he asked for interim orders for the three children who are the subjects of the proceedings to go to live with him immediately and for sole parental responsibility to be conferred upon him immediately. He sought an order that the eldest child be enrolled into Suburb H High School without delay. He sought an order that the children have supervised time with the mother and their younger half-sibling (the child of the mother and her current partner).  He sought an order that the mother provide the name and contact details of the psychological support that the two younger children, who remain in the mother’s care, are currently receiving. He sought an order that restraint on his current spouse, Ms T, from contacting or communicating with the three children be removed. He sought an order that the mother provide her residential address to the Court and the ICL.

6. I raised with the father the possibility that I would not make the orders that the children live with him on an interim basis and asked him if he would press for different orders in such circumstances. He told the Court that in those circumstances, he would revert to seeking some of the orders he had sought in the written Application in a Case, namely that the three children have telephone communication with each other each Sunday and Wednesday evening and that he have supervised time with them pending final orders being made.

7. The mother opposed the father’s application and urged the Court to dismiss it. She did not seek any other orders. Counsel for the ICL also informed the Court that the ICL opposed the father’s application and submitted that it should be dismissed.

8. I have determined to dismiss the father’s Application in a Case. These are my reasons. My written reasons published on 5 August 2020, set out a brief historical account of the circumstances that present in this case. I refer the reader to those if a clearer understanding of the factual background to the matter is required.

9. As has been the case since the trial was concluded, the eldest child, X, has been living, contrary to an existing order, in the care of the father’s sister-in-law. She has, it appears, had no communication with her mother in the last few months and not spent any time with her mother either. The existing Order provides for her to live with her mother. The two younger children live with the mother and do not spend any time with the father, nor do they communicate with him. That is in accordance with the existing interim Orders.

10. In my reasons published on 5 August 2020, I observed:

    Critically, X does not attend school whilst living with Ms P [the father’s sister-in-law].

11. There is evidence before the Court now, that the father’s sister-in-law started taking X back to school (the school she was previously attending whilst living with the mother) later in August on a sporadic basis, and has done that through September and October as well, on one or two days per week. It is not in dispute that Y, the younger sister, has continued to attend the same school throughout the year (after the COVID-19 interruption was finished) and that on some of the days that X has been taken to school by the father’s sister-in-law, X and Y have had contact with each other. There is evidence from the mother that she has not been happy with all that surrounds the decision to return X to school as has happened, particularly in respect of the nature of X’s communication with her sister, Y, but it is reasonably clear the mother has taken no steps to take matters into her own hands. She has not taken X back into her care, preferring to leave that as a matter for the Court’s determination as part of the determination of final Orders in the matter.

12. The father put affidavit evidence of his sister-in-law before the Court in which she deposed to only being able to facilitate X’s attendance at the school on 1-2 days per week “due to the time to commute to and from W Town from [her] residence”. She also deposed to this only being a short-term arrangement as she is “due to return to full-time work”. Ms P also deposed to matters concerning her arising out of things she asserts X has said to her about how she has been treated by school staff on days that she has been back at school. Ms P deposed to having raised those with the school’s administration and that she was advised the school would look into the matters. She did not say when she will be going back to full-time work or whether the school administration provided any further information in respect to her concerns about the way X has been treated. The difficulty for the school’s administration, of course, is the fact that Ms P does not have any parental responsibility for X and the school must be limited in what information it can give her.

13. Ms P also asserted in her affidavit that “X has tried to contact the mother on several occasions and we have found the Mother’s number has been disconnected”. When the matter was before me on 31 July on the previous interim applications, there was no dispute that the child, X, and Ms P had the mother’s telephone number. There was evidence in the form of a recording of a conversation between X and her mother (made in the absence of the mother’s consent and, apparently, also in the absence of X’s consent) that satisfied me that X had the mother’s number at that time.

14. The mother herself confirms in her affidavit filed in response to this Application in a Case filed by the father, that she has since changed that phone number.  She said:

    On 6 August 2020, I had to change my phone as I was receiving a number of prank calls from private numbers and believe that I was being recorded illegally by the father’s associates without my knowledge or consent.

15. She goes on to say that she will not disclose her residence or phone details to the father or any other person associated or aligned with him. She says that her children (presumably Y and Z) have “expressed a wish not to have phone contact with the father or X for fear of being recorded”.

16. Accordingly, I accept Ms P’s evidence that X has tried to contact the mother on several occasions and that they have found the mother’s number disconnected. 

17. In the affidavit of the father filed on 1 October, the father also said that his sister-in-law “is due to return to full-time employment”, so will not be able to facilitate driving X over an hour to attend school. He did not say when that might actually happen. The father said the child will then only be able to engage in schooling via the online platform the school has provided. He said that if the Court put X in his immediate care, he would ensure she attended school five days per week (presumably at a new school, though one she has attended in the past) and that this should happen as a matter of urgency.

18. He also said in his affidavit that the mother has not facilitated any contact between the three children since the matter was last at court. I accept that as correct. It was not disputed at all by the mother. Relevantly, I observe that my Order of 5 August provided for the mother to facilitate communication between the two younger children and their big sister at the mother’s discretion. That was based on my real concerns that X might very well act as an agent for the father when speaking with her siblings. I have no reason to consider differently today. Furthermore, as I have already observed, the mother said in her affidavit that the two children in her care have expressed a view that they do not wish to speak with their sister over the phone, asserting that they fear being recorded. It is impossible to say that is not correct.

19. The father submitted that although I am reserved in my final judgment in which the parental placement of all three children is to be determined, I should immediately place all three children with him pending the delivery of my final judgment. He submitted that the mother is simply “fixated” on keeping the children from him and that there “is no end to the mother’s allegations”. He submitted that the mother’s affidavit is full of deliberately false, fabricated or misleading evidence. He went on to submit that, indeed, I should refer the mother and her affidavit to the Attorney-General to consider prosecuting her for offences under the Queensland Criminal Code for perjury or fabrication of evidence.

20. I understood his submission to be that I would be so concerned for the continued emotional and psychological abuse of the two children in the mother’s care that I would immediately move them to his care, as well as moving their big sister to his care, and then refer the mother, not only to the Attorney-General but also to the Department of Child Safety, for assessment and action against the mother in respect of the abuse he submitted the mother is perpetrating upon them.

21. The mother’s solicitor made very brief oral submissions. She submitted that the father was simply “having another bite of the apple”.  I understood that to be a submission that the matters he was raising are really matters already in issue in the substantive proceedings that are to be determined in my reserved final judgment and that each of the parties should just await that judgment now.

22. Counsel for the ICL made the very same submission, in effect. He submitted that there is no reason to re-open the matter again when a decision based on all of the evidence adduced during the nineteen day trial is still being considered. He submitted that the father had not put evidence before the Court that would persuade me now, whilst still considering all of the evidence that will take me to my final determination, that an immediate and urgent decision to place all three children in the father’s care is required to meet their best interests.

23. Whilst I appreciate the concern the father has about the need to finalise this matter, and his particular concern for the fact that the parties’ eldest child has not been going to school for most of this year, I accept the appropriateness of the submission made by counsel for the ICL, effectively supported by the solicitor who represents the mother.

24. I do not consider the evidence adduced by the father in support of this Application in a Case points to the immediate need to move all three children to his care when there is so much relevant evidence yet to be considered, weighed, accepted or rejected and decided upon. Neither am I persuaded that the evidence the father has put before the Court in support of this Application in a Case points to an immediate need to move X to his care or to make an immediate order that permits the child to be taken to a different school by him or by an adult who does not have parental responsibility for her and who continues to retain the child in her care in the face of an Order that she lives with her mother.

25. It is not appropriate to make fresh interim parenting orders now. That includes any fresh orders that provide for any of the three children to spend time in the father’s care, be it supervised or unsupervised. The determination of whether all three of these children, or just one of them, should be living in the care of the father is one of the real live issues to be determined in the final judgment. If that is determined against the father, then the questions of what time, if any, they spend with him, and, if any, under what circumstances or conditions that should be spent are also live issues to be determined in that judgment.

26. I have no intention of pre-empting those determinations now and making orders that put the children into the father’s interim care or even making orders that provide for interim contact with the father, supervised or unsupervised.

27. I previously determined that the mother has the discretion, on an interim basis, to facilitate telephone communication between the two children who remain in her care and their big sister, X. I will not shift from that determination at this point in time, simply because the evidence is that the mother has chosen not to facilitate that. Nothing the father put before me in evidence at the hearing of this Application in a Case or in his oral submissions persuaded me that I must immediately order telephone communication between X and her siblings to meet their best interests. I will not.  

28. As for the application for an order that the mother provide the name and contact details of the psychologist that the two children in her care have been seeing, the mother said in her affidavit filed in response that those children continue to see Dr O pursuant to Orders. The father knows Dr O. He knows where she practices from. That information answers his application. However, at the hearing he submitted that he ought to be told by the mother the dates on which the children have seen and are seeing Dr O. At this point in the proceedings, I do not consider that necessarily in the best interests of the two youngest children and I will make no order requiring the same.

29. The father asked for an order removing the restraint against his current spouse preventing her from having contact or communicating with any of the three children. That restraint was made on 6 September 2019 in Orders made by her Honour Judge Tonkin of the Federal Circuit Court as a means of directly responding to the then emergent circumstances of X’s removing herself from the mother’s care and her being kept removed from the mother’s care contrary to the Court’s Orders. Notwithstanding that restraint and similar restraints made against other persons in the father’s immediate circle, X found her way into Ms P’s care. Ms P is the sister of the father’s current spouse. X remains in her care contrary to the Court’s Orders. Plainly, neither the father nor his current spouse have been able to influence Ms P to return X to the mother’s care in accordance with existing Orders and there is absolutely no restraint on either of them preventing them from communicating with or having contact with Ms P. I am, therefore, not satisfied that removing the restraint on the father’s current spouse will result in X returning to her mother’s care. At this point in the proceedings, I will not remove it in respect of X.

30. There is absolutely no evidentiary basis at all for ordering the removal of the restraint preventing the father’s spouse from communicating with or having contact with the two younger children. Indeed, I am satisfied, at this point, that tacitly approving any such communication or contact by removing the express restraint, would be contrary to the best interests of these two children. They, too, could very well be encouraged to remove themselves from their mother’s care, just like their big sister. I will not remove the restraint at all.

31. Further, in respect of the father’s application for an order that the mother provide her address to the Court and the ICL, I will not make such an order. The father essentially based his submission in support of that application on an assertion that “procedural fairness” required such an order. I respectfully consider, after having heard his submissions, that he has mistaken the real meaning and requirement of “procedural fairness”. He told the Court that because he had been required to give his residential address to the Court and to the ICL during the course of the trial that so should the mother. With respect, it does not follow. The requirement for that was based on the existing undisputed circumstance that the child, X, who was, by order, meant to be living with her mother was not and that knowing the father’s address might be relevant to finding her if a Recovery Order was considered necessary. “Procedural fairness” does not mean that where one parent is required to provide his or her residential address to the Court and/or the ICL that the other parent must also be so required.

1. In any event, when asked would the mother voluntarily provide her residential address to the Court, in circumstances where the Court assured her it would not be revealed to the father or anyone else except by order after application that she had the right to be heard on, the mother did voluntarily and without further issue provide that address to the Court. When asked whether the ICL required to be informed of that address, counsel for the ICL told the Court that he did not. Counsel was then told that he should convey to the ICL the Court’s view that if the ICL considered that he required the mother’s residential address for any legitimate reason and, after request of her, the mother refused to provide that to him, then the ICL should feel free to make an application to the Court if he considered the Court could be persuaded that it was in the children’s best interests to order the mother to disclose her residential address to the ICL. Counsel acknowledged the Court’s position on that.

2. Though the father was unhappy that the ICL did not appear to consider it necessary to have knowledge of the mother’s current residential address, nothing he submitted to me caused me to consider that I should order the mother to give her residential address to the ICL. I will not order that.

3. Finally, as I have already observed, during the hearing, the father made the oral submission that I should refer the mother to the Attorney-General for consideration to be given to prosecuting her for perjury or fabrication of evidence. He specifically related that submission to the mother’s affidavit filed on 30 October 2020 and, even more specifically, to paragraphs 7, 8, 10, 15 and 20 of that affidavit. I will not be doing what he submitted I should do.

4. As I told the father during the hearing, the mother was not cross-examined on her affidavit and those paragraphs. He had not filed or adduced evidence that proved to me on the balance of probabilities that the mother had deliberately and wilfully given false evidence under oath or affirmation in those paragraphs or deliberately and wilfully fabricated such evidence. Even the three photographs that became Exhibit 1 that related to the evidence that the mother deposed to in paragraph 15 of her affidavit did not, on their face, prove to me, on the balance of probabilities, that the mother had deliberately given false or fabricated evidence. The mother said in her affidavit that the school staff carpark where she had arranged to pick Y up from, “is a one way exit/entry carpark.” She said that after Y got in the car “we headed towards the exit” and that as she did that, “a motor vehicle 1 had illegally entered the exit point and was driving towards me taking up the road up (sic) where I was driving causing me to have to slow down.” 

5. The father’s documentary exhibits apparently show that there is only one road from the street into the carpark which is both an entry and exit point, meaning that when the mother was driving out, the car driving towards her was driving in on the same entry and exit road, presumably permissibly. That is not to say that it could not have been possible for that car to be driving directly towards her, taking up roadway that the mother might otherwise have driven on, causing the mother to believe the other driver was driving “down the wrong side of the road”. In any event, the mother said herself that she “drove around” the other car and was able to drive away.  After seeing the photographs, the mother, through her solicitor, conceded the point in respect to there being only one entry and exit gate and one road in and out. That is certainly how it looks on the photographs.  That concession is, however, far short of a concession that she deliberately gave false evidence or fabricated evidence on the point and without there being any cross-examination of the mother on the point I have no intention of referring the matter to the Attorney-General. That would be a complete waste of time and resources.

6. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 November 2020.

Associate: 

Date:  3 November 2020