TABANO & YABON

[2020] FamCA 643

FAMILY COURT OF AUSTRALIA

TABANO & YABON [2020] FamCA 643

FAMILY LAW – CHILDREN – Recovery Order – Where the mother seeks a recovery order for the eldest of three children subject to the proceedings – Where that child has been residing with the father’s sister-in-law for a number of months – Where a final hearing took place over nineteen days in March, April and May, this year, and judgment is reserved – Where the Independent Children’s Lawyer and the father seek that the mother’s application for a recovery order be dismissed – Where the father also seeks other interim orders – Where the Court is not persuaded that there should be any immediate change to the living arrangements of the three children, whilst judgment is reserved – Where an order will be made enabling the eldest child to have telephone contact with her two younger siblings, with those telephone calls to be monitored by the mother – Where the application for a recovery order is dismissed.

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: 5 August 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 31 July 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 mother’s Application in a Case filed 15 July 2020 for a recovery order to issue in respect of the child, X born … 2006, is dismissed.

2. That, with the consent of the parties and the Independent Children’s Lawyer, the trial of this matter be re-opened for the limited purpose of admitting all of the evidence that was adduced on the applications heard on Friday, 31 July 2020 into the evidence to be considered in determining the competing applications for final orders and such evidence is so admitted.

3. That the mother shall be at liberty to call on the number provided by the father to the Court at the hearing on Friday, 31 July 2020, as being the mobile telephone number of his sister-in-law with whom the child, X, is currently residing, at the mother’s own discretion, to speak with X and to facilitate such conversations between X and her siblings, Y and Z, as the mother determines appropriate with the mother also being at liberty to listen to such conversations on loud speaker phone and to terminate them as she considers necessary having regard to the best interests of the three children.

4. That all other interim applications of the mother and the father 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 an Application in a Case filed by the mother in parenting orders proceedings which have already gone to a nineteen day trial in March, April and May of this year. At the end of that trial, I reserved my decision and it remains reserved. However, despite that, the mother makes application for the immediate recovery of the eldest of the three children who are the subject of the proceedings.

2. Thirteen year old, X, and her two younger siblings, Y, who is twelve, and Z, who is ten, have been subject to highly conflictual litigation between their parents since 2016, when proceedings were commenced by the father.  In December 2017, final orders were made with the consent of the parties in the Federal Circuit Court. Parental responsibility was to be shared. The three children were to live with the mother and to spend time with the father every alternate weekend and for half of their school holidays.

3. In early 2018, in rather extraordinary circumstances, the three children were placed in the principal care of the father whilst the mother was giving birth to her fourth child. That was not done with the mother’s consent, but by Court Order whilst she was in hospital in labour. They remained in the father’s principal care, despite the mother seeking to have the matter heard and determined again on a final basis, through until the middle of 2019 when again, on an interim basis, the three children were returned to the mother’s principal care. On this occasion, the Federal Circuit Court Judge who made that Order also ordered that the children should not spend any time at all with the father pending trial. The father appealed the Federal Circuit Court Judge’s orders, but they were not changed by the Full Court as the matter had already been listed for trial before me.

4. Whilst the matter was awaiting trial, the eldest child, X, left the mother’s home without the permission or knowledge of the mother on a number of occasions, only to be returned by the issue of recovery orders by the Federal Circuit Court and, after the proceedings had been transferred to this Court, by this Court, each time.

5. The matter was listed for an expedited hearing in this Court with a view to providing this family with some finality again. It was heard via the Microsoft Teams internet videoconferencing platform during COVID-19 lockdown. It was originally listed for five days of hearing but ended up taking nineteen days.

6. Not long before the trial took place, X left the mother’s home again and found her way into the care of Ms P, a sister of the father’s wife. The mother did not apply for another recovery order at that time, such that at the time the matter went to trial, X was still living with Ms P and the two younger siblings were still living with the mother. The younger two were and are still not having any time or contact with the father pursuant to the Federal Circuit Court Judge’s interim order that is still extant. The father asserts thatX is having no time or contact with him either, though he deposes to being in fairly constant contact with Ms P and to having much knowledge of X’s current life. Critically, X does not attend school whilst living with Ms P.

7. There was much evidence at the trial about X and her relationship with the mother, the mother’s husband and X’s siblings. In my reserved judgment, I am to decide between the competing propositions of all three children living with the father and spending limited time with the mother; all three children living with the mother and spending no or limited time with the father; and the eldest child, X, living with the father and spending no or limited time with the mother and the two youngest children living with the mother and spending no or limited time with the father. There was little, if any, evidence from the mother as to how she intended to deal with any practical and emotional difficulties that would arise if X was ordered to be returned to her care and to continue to live with her.

8. On 15 July 2020, the mother’s solicitors filed the Application in a Case that is now being considered, along with a supporting affidavit. I caused the Application to be listed for hearing before me on Friday, 31 July 2020.

9. In her supporting affidavit, the mother says that she understands that X will require significant support transitioning back into her care. She says that she has taken steps to ensure that X will be “fully supported for this transition”. She says she has engaged the child psychiatrist, Dr Q, who she will take X to see upon her return to her care. She says that she has also engaged with an organisation to assist the children with dealing with “exposure to domestic violence and other trauma related events” and that they are on standby to assist. She says that she has made enquiries with a therapy service located in Region R and hopes to use this service to assist X.

10. The mother says that she has arranged for X to initially reside with a long-time friend who the mother says “is capable of caring for her and is well aware of our history”.

11. The Independent Children’s Lawyer (ICL) opposed the application. So, too, did the father.

12. Counsel for the ICL submitted that the Court should not make any interim orders in respect of X’s residential placement at the moment, before finalising the reserved judgment and making one set of final orders. He submitted that it would be inappropriate to do that at this point in the process, particularly when there is some evidence before the Court that she is being cared for and getting some external assistance with tutoring and counselling from an Indigenous Organisation that she has become connected to in recent times. He particularly opposed any order moving her on an interim basis to live with either parent and any order requiring her to attend school at Suburb H, the school she attended when living in the care of the father.

13. The father filed a Response in which he seeks dismissal of the mother’s application, but in which he also seeks a number of orders himself. He asks the Court to make an order that X go to live with him right away or, alternatively, that she remain in the care of Ms P until the Court’s final judgment is delivered. He seeks a further interim order that she be enrolled at the Suburb H High School without delay so that she may re-attend school and that she also start attending again upon a psychologist she was being taken to in the lead up to the trial by those whose care she found herself in, after leaving the mother’s home. He also asks for an order that the mother facilitate telephone communication between X and her two younger siblings. Finally, he asks the mother to immediately disclose the residential address and current schools of the children to the Court.

14. The father’s affidavit of evidence consisted largely of argument, speculation, assertion and hearsay. That is unsurprising as he is not a lawyer, is unrepresented and prepared his own affidavit, apparently with the assistance of his wife, who has been appearing with him as a support person in recent times.

15. Relevantly, he made much of matters allegedly surrounding telephone communication and attempts by X to have some telephone communication with her siblings in recent months. Most of this evidence was hearsay, in that it could only have been told to the father by his sister-in-law, Ms P.

16. The father steadfastly denies that he communicates at all with X. He says in his affidavit that Ms P told him on 20 May that X wanted to speak to her mother. He then emailed the mother’s solicitors and told them that Ms P had informed him that X would be calling the mother from a private number within a few hours. The mother’s solicitors replied to the father and told him that they had advised the mother. A little later that day, the mother’s solicitors asked the father to advise the purpose of X’s wishing to contact the mother. The father wrote back and told them that he was not privy to that information, but asserted that he was aware that she had already attempted to contact the mother five times that day without any success. He advised that the mother could contact X through Ms P if she wished, using the contact details (presumably Ms P’s telephone number) “she already has”.

17. In his affidavit, the father asserted that the mother had Ms P’s number and that she had been in text communication with her on that number previously. He argumentatively asserted that the mother was “more than capable of returning X’s phone calls but chose not to do so”.

18. The father went on to say that on 13 July Ms P told him that X had again tried to call her mother but had only reached the mother’s voice-mail and did not leave a message. X had called a second time with the mother’s husband answering the phone. The father says that Ms P told him that X hung up immediately that time and “became immediately anxious and started crying and shaking after hearing [the husband’s] voice and needed to be consoled”.

19. The father went on further to say that Ms P told him that on 14 July, X attempted to call her mother yet again and that the mother answered and had a ten minute conversation with X. He says that “X asked if she could talk to her sibling’s (sic) multiple times which the mother agreed to each time and invited X to call back at 7:00pm that evening”.

20. About that phone call, the father says in his affidavit:

    Due to X’s reaction to hearing [the husband’s] voice Ms P felt it necessary to discretely record the communication between X and the mother and this recording will be provided to the Court upon request. (my emphasis)

21. At the start of the hearing on 31 July, the father told the Court that he actually wanted to play the recording of that phone call and have it considered as evidence in the matter. He conceded that he had not provided a copy of the recording to the mother’s solicitors or the ICL. He conceded that he had not even reduced it to a form in which it could properly be tendered into evidence. He simply produced what he said was Ms P’s mobile telephone upon which the conversation had been recorded.

22. In order to consider his application to play it, I asked him some questions. He confirmed that the mother did not know that the conversation was being recorded and had not given consent to its recording. He confirmed that the child, X, did not know that her conversation with the mother was being recorded. He told the Court that she had had the conversation with the mother on another mobile phone and that it had been on loud speaker and that Ms P had discretely recorded it on her mobile phone without either the mother or X knowing that the conversation was being recorded.

23. Counsel for the ICL then raised with the Court the fact that the recording of the telephone conversation in those circumstances was likely to have constituted an offence and that, therefore, the father was seeking to adduce illegally obtained material into evidence in the proceedings.

24. Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) (as amended) does prohibit a person from intercepting, authorizing, suffering or permitting another person to intercept, or to do any act or thing that will enable him or her or another person to intercept, a communication passing over a telecommunications system.

25. Section 6 of the same Act describes “interception” for the purposes of the Act as consisting of “listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication”.

26. In Queensland, State legislation also applies. Section 43 of the Invasion of Privacy Act 1971 (Qld) (as amended) prohibits a person from using a device to record a private conversation and makes it an indictable offence with a maximum period of 2 years imprisonment on conviction. It is not an offence under Queensland law where the person who records the private conversation is a party to that conversation.

27. Considering those legislative provisions and the matters confirmed by the father in respect of the recording of the telephone conversation, I am satisfied that recording was “illegally obtained”. Counsel for the ICL also referred me to s 138 of the Evidence Act 1995 (Cth). That provides:

    Evidence that was obtained:

    (a)Improperly or in contravention of an Australian law; or

    (b)In consequence of an impropriety or of a contravention of an Australian law;

    is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

28. During the hearing, conscious that the recording of the intercepted phone conversation was probably illegally obtained, as well as being conscious of the discretion available to me to nevertheless admit it into evidence, I adjourned and directed the father to play the recording outside court in a conference room to counsel for the ICL and the solicitor for the mother with a view to hearing from them after they had listened to it as to whether they objected to it being admitted into evidence or not. Upon resumption, neither counsel for the ICL nor the solicitor for the mother objected to the recording being played into evidence. Accordingly, I exercised my discretion in favour of allowing it to be played and admitted it into evidence. It was played as the father requested and I directed the father to provide an electronic copy of it to the Court as soon as he could after the hearing so that it could become an exhibit in the possession of the Court. At the time of publication of these reasons he had not yet done that, to the best of my knowledge.

29. The recording was of a telephone conversation between the mother and the child, X. There was nothing to indicate what day or date it took place on, but it did take place during the day time as there was discussion at the end of the conversation where the child asked the mother what time she could call back later that day when she might be able to talk with her siblings and the mother told her around 7:00 pm. The mother certainly did not tell the child that she did not want her to be talking to her siblings.

30. There was nothing else about the conversation that reflected other than a reasonable conversation between the mother and a daughter who had not seen each other for some months. The father told the Court that he considered his daughter to be anxious during the conversation. With respect, I could not detect that. At no time was the mother rude, mean, or oppressive in her demeanour and conversation with her daughter. She conveyed sensitivity to the circumstances that her daughter is in. During the conversation, the mother told X that she no longer had Ms P’s telephone number as she had a problem with the telephone in which it was stored or recorded and that she could not simply return calls she received from a private number. X told her she would call her that night and tell her the number.

31. In his affidavit, the father says that Ms P told him that X called at 7:00 pm “as per the mother’s invite so she could speak to her siblings” but that the mother did not answer. He says that Ms P told him that X tried to call a further six times without any success. The father says that he was told that on the last of those attempts, the child left a voicemail message for the mother with a return contact number. Again, the father argumentatively asserts that the “mother was more than capable of returning X’s phone calls but yet again the mother chose not to”.

32. The only evidence that the mother gave about any of this in her affidavit (that was filed first in time in this matter), sworn, the Court was told, on 15 July, was as follows:

    X called my phone earlier this week, I was driving and did not answer, she left a message wishing to speak to her siblings.

    She said nothing more about phone calls from the child.

33. Despite, there having been no cross-examination, the father was most adamant that the mother had deliberately lied in her affidavit, citing his evidence and the recorded phone conversation as evidence that proved that. I make no such finding. That sentence of the wife’s affidavit does not say that this was the only time the child called or tried to call her. It does not say exactly when that call took place. It does not say “yesterday X called”. It simply says “X called my phone earlier this week”. That may be true. It may not be.  The father’s evidence, the recording and the submissions of the father do not persuade me to the positive finding that the mother gave false evidence. Clearly, she did not give any evidence about any other calls that had taken place, but it is to be remembered that she filed her affidavit first in time and was not seeking any orders pertaining to telephone calls. The father filed his affidavit in support of his application (for orders that included one going to telephone calls) after office hours only two nights before the hearing. The mother had very little opportunity to file an affidavit in which she responded or deposed to matters going to the orders the father was seeking.

1. During her submissions to the Court, the mother’s solicitor told the Court that the mother was reluctant to agree to permit telephone communication between X and her siblings as such. Having regard to all of the evidence that I heard in the trial over nineteen days, I have some understanding of why it might concern the mother. I would be troubled that X might broach some inappropriate topics in conversation with her siblings either as agent for her father or one of the other adults close to him or of her own volition.

2. I asked the father if he would have any objection to any telephone calls between X and her siblings that might be facilitated being heard in the mother’s household on loud speaker so that the mother could hear if anything inappropriate was said by X or any other person and terminate the call if she considered it necessary having regard to the wellbeing of the children. The father made no objection to that, expressing the view that he just wanted the three siblings to be able to talk to each other.

3. The mother’s solicitor was then asked if the mother might consider facilitating such telephone communication between the children under such circumstances. She took instructions and informed the Court that the mother accepted that. Accordingly, I will make orders that include provision for this.

Another Matter of Note

1. The father attached a number of documents to his affidavit. They included some written email communication between him and the mother’s solicitors. I have already referred to some. They included a letter from the mother’s solicitors to him sent at 12:01 pm on Thursday, 14 May 2020. In that letter, the father was asked to make arrangements for X to be returned to the mother’s care by having Ms P return her to the maternal grandmother’s home at midday on the following Sunday.

2. The father then attached an email letter that responded to that which is dated and timed at 12:45 pm on Thursday, 14 May 2020, the same day. In that email, he asked for the mother’s solicitors to “elaborate as to what mechanisms the mother has sought to put in place to support X’s emotional and physical safety and well-being in an attempt to transition X back into her care” so that he could talk to Ms P about this. The father put another email letter into evidence. It is dated and timed at 3:39 pm on Friday, 15 May 2020 and simply asks the mother’s solicitor to confirm that she received his email sent the day before as he had not received a response. It would seem that he did not get a response to that one either. There is no dispute about that, as the mother’s solicitor informed the Court on the day of the hearing that her firm did not receive the two email letters the father attached to his affidavit. Not having received responses to either of them, particularly when he asked for a response to confirm that they had been received might ordinarily have alerted the father to the possibility that they had not been received.

3. In any event, the father also exhibited the next one he sent at 10:52 am on Monday, 18 May 2020. In that letter, the father told the mother’s solicitor that Ms P had told him that she had made all attempts to encourage X to go to her grandmother’s at midday on the day before. He then said, relevantly:

   Without a response to my email, X had a number of questions that I could not answer for Ms P. … If there is to be a transitional residence I believe it would be in X’s best interests for there to be another alternative.

   However, and with that said without having what I would consider relevant knowledge of what “mechanisms” Ms Tabano has put in place to support a transition for X would have given Ms P a better opportunity to answer some of X’s questions and offer some valuable reassurance.

   I would also consider the “mechanisms” to be major long term health decision (sic) for X and respectfully request at a minimum that Ms Tabano inform me of what those long term decisions look like as per the current interim Orders.

   …

   I remain committed to provide Ms P with the information of what support framework has been put in place for X so she can continue to support and encourage X to transition back to your client as per the current interim Orders, …

4. Though the father did not exhibit it to his affidavit to complete the relevant letter exchange, the mother’s solicitors did respond to that last email letter of his. They did that at 4:07 pm later that day, Monday, 18 May. That letter was tendered and it was admitted to evidence before me as Exhibit 3. In that letter, the solicitors for the mother told the father of the mother’s intentions in respect of steps she proposed putting in place if X was returned to her.

5. Remarkably, after having another look at that letter in Court after its tender (and not denying that he had previously received it), the father made the extraordinary submission that it supported a finding that the mother’s solicitor had “misled the Court” or lied to the Court when she told the Court that the two emails the father asserted he had sent on the Thursday and Friday, 14 and 15 May 2020 had not been received. He submitted that they must have been received otherwise the mother’s solicitor would not have known to respond to his request for details about the steps the mother planned to put in place on X’s return to her care.

6. As was pointed out by counsel for the ICL in his submissions in reply, the ridiculousness of that submission is obvious when one considers the wording of the email letter the father also sent to the mother’s solicitor on Monday, 18 May. The mother’s solicitor accepted having received that and had responded to it. Considering the extracts of that letter that I have set out a little earlier in these reasons, and the email the mother’s solicitor sent in response, objectively considered, the mother’s solicitor was reasonably responding to that email. Her response does not support a finding that the solicitor lied to the Court when she told the Court that the earlier two emails from the father were not received. These submissions of the father exemplify the father leaping to an unreasonable and irrational conclusion and maliciously savaging the integrity and professionalism of the mother’s solicitors without good reason. I reprimanded him for doing that and stand by that. It is very improper of him to attack the integrity and professionalism of the solicitors acting for the mother as he did without good reason. Such attacks by him do him no credit. They demonstrate a lack of judgment and restraint on his part.

Another Matter of Note

1. The father says in his affidavit that he was told by the maternal grandmother that the mother has moved her place of residence from the one she was living in at the trial. Clearly, he accepted that as correct information conveyed to him without any confirmation from the mother. He appeared to conclude that it meant another change to the school attended by the two youngest children. He expressed his displeasure at the mother having done that without his knowledge or consent. This information apparently forms the basis of his application for an order that the mother immediately disclose the address and current schools of the children.

2. During the hearing, I asked the mother’s solicitor if she knew whether the mother had moved her place of residence as asserted by the father or not. The mother’s solicitor said she knew the correct position. I asked her if the mother wanted to disclose to the Court and the father whether she had moved or not. The solicitor informed the Court that the mother did not object to doing that and confirmed that the mother instructed her that she had moved her place of residence. I asked her if she could tell the Court whether the two youngest children had changed schools as a consequence and the mother’s solicitors told the Court that her instructions were that they had not.

3. I clearly understood that the mother did not want the father to know her new residential address and I told the father that. He did not press the issue and appeared to accept the information that the two youngest children had not changed schools. Accordingly, at this time, I will not be making any order that the mother disclose her residential address to the Court or the father.

The Outcome

1. This is a very high conflict parenting dispute. The evidence adduced in nineteen days of hearing clearly demonstrated that. The mother and the father and the ICL were all at one with respect to the view that the trial should be reopened for the limited purpose of including all of the evidence that was adduced in the hearing of this Application in a Case filed by the mother and the Response to that filed by the father as evidence in the trial. In such circumstances, I will do that.

2. I am not persuaded that there should be any immediate change to the living arrangements pertaining to the three children at the time of the trial. That is what counsel for the ICL submitted and I consider that there is merit in that submission. Accepting that the child, X, is getting some assistance from the indigenous organisation, alleviates some of the immediate concern about her not attending school. The parents are at serious odds about the child’s schooling and seemingly determined not to make any concession in that respect that might presuppose the final outcome. That position was also supported by the ICL.

3. I do not intend to order the recovery of X and return to her mother at this point in time. I do not intend to order that she go to live with her father at this point in time. Similarly, I do not intend to make an order that she be immediately enrolled in Suburb H High School and that she commence going there again.

4. In that respect, it might be appropriate for some contact to be made by the mother with the School of Distance Education to see if some educational assistance could be provided by that school to X whilst she remains in the care of Ms P pending determination of her residential placement on a final basis. I do understand them to provide curriculum assistance to home-based learners. It might be a good place to start to provide some educational assistance to her during this continuing “self-placement” with Ms P.

5. In a similar vein, I have no intention of making an order that the mother must provide consent for X to begin attending upon the psychologist Ms S. I do not consider that to be appropriate in all the circumstances.

6. If the father is, as he says he is, genuinely interested in X’s emotional and mental well-being, he might agree to her beginning to be seen by the child and adolescent psychiatrist, Dr Q, whose name was mentioned by the mother in her affidavit. Dr Q is known to this Court, as having been a single expert witness in a previous case, as a very capable and caring professional who would be an ideal professional for X to begin to see.

7. I will dismiss the mother’s application and I will make the other orders set out at the commencement of these written reasons.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 5 August 2020.

Associate: 

Date:  5 August 2020