Thanh & Thanh
[2022] FedCFamC1A 125
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Thanh & Thanh [2022] FedCFamC1A 125
Appeal from: Thanh & Thanh [2022] FedCFamC2F 226 Appeal number(s): NAA 49 of 2022 File number(s): MLC 1350 of 2022 Judgment of: ALDRIDGE J Date of judgment: 17 August 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against orders for the mother to have sole parental responsibility and for the child to live with the mother in Country B – Where the father is serving a sentence in gaol and it is likely the father will be deported to Country D on release – Procedural fairness – Adequacy of reasons – Challenges to findings of fact – Views of the child – Where the appeal is futile – No error established – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) ss 65DA, 60CC
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
House v The King (1936) 55 CLR 499; [1936] HCA 40
National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296; [1984] HCA 29
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Number of paragraphs: 75 Date of hearing: 2 August 2022 Place: Sydney (via video link) Counsel for the Appellant: Ms Tiernan Solicitor for the Appellant: TQH Lawyers & Consultants The Respondent: Self-represented litigant ORDERS
NAA 49 of 2022
MLC 1350 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR THANH
Appellant
AND: MS THANH
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
17 AUGUST 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under pseudonym Thanh & Thanh has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
Introduction
This is an appeal against parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 21 February 2022.
The parties have a child who was born in 2011. The orders provided for him to live with his mother, Ms Thanh, in Country B. The mother is to have sole parental responsibility for him and the child was to spend time and communicate with the father, Mr Thanh, as agreed between the parties.
These orders came about in the unusual circumstance where the father was in gaol serving a sentence for drug related crimes and where, on release from custody, he is likely to be deported.
In order to understand the father’s appeal, it is necessary to set out the relevant history, which has been taken from his Honour’s reasons and the father’s Summary of Argument filed on 6 June 2022.
The parties were residents of Country D. They separated in mid-2013 and were divorced in mid-2014.
The mother moved to Country B in early 2016 and the father moved to Australia in around 2015 to 2016. The child was left in the care of the paternal family.
In 2018, the mother agreed that the child could live with the father in Australia. The child was granted an Australian visa in November 2018 and in February 2019 the father travelled to Country D to collect the child from his relatives and return with him to Australia.
The mother travelled to Australia for two weeks in around May and June 2019 and again in December 2019 to spend time with the child, who was during those times, in her full-time care.
COVID-19 prevented subsequent visits by the mother.
In August 2020, the mother was informed that the father had been arrested in relation to drug offences and had been imprisoned for a minimum term of three years and four months. The father became eligible for parole in June 2022, some four months after the hearing before the primary judge.
The child remained in the care of the father’s partner until the mother was able to travel to Australia on 13 November 2021. The child has been in her care since that time.
The mother filed an Initiating Application and a supporting affidavit on 14 February 2022. The father received the documents in prison on 16 February 2022. He is not able to speak or read in English.
The matter came before the primary judge on 17 February 2022 when it was adjourned to 21 February 2022 so that the father could have the benefit of an interpreter.
The father instructed solicitors on 18 February 2022 who appeared for him on 21 February 2022. The father attended the hearing via video link but without an interpreter present because the person who had been arranged did not attend. A prison employee sent an email to the Court at 10:33am, during the hearing, informing the Court about the lack of an interpreter. The email was not received until after the hearing ended, apparently due to technological issues.
The Appeal
In my opinion, this appeal is entirely futile.
The orders have been put into effect and the mother has returned to Country B with the child. The father remains in prison with, at least, the possibility of being deported on his release.
The father is therefore not in a position to care for the child and it is not known when, if at all, he will be able to care for the child again.
Notwithstanding all that, the father submitted that issues of parental responsibility and communication remained as important issues which could be reconsidered if the appeal was allowed.
Whilst the Court undoubtedly retains jurisdiction in this matter, there is a real question as to whether it would exercise it given that the child now lives in Country B. If the husband is deported, it will be to his place of origin, which is Country D.
It is difficult to see how the father could effectively exercise any parental responsibility in these circumstances let alone enforce an order that gave him parental responsibility or the right to be consulted. Country B is not a signatory to the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children.
Nonetheless, I shall deal briefly with the grounds of appeal.
Was the father denied procedural fairness? (Ground 1)
The father submits that he was denied procedural fairness because:
·He was not given the opportunity to obtain proper advice or to adduce evidence;
·He was not informed final orders would be made on the first return date;
·He was not allowed to test the mother’s evidence by cross-examination or by adducing evidence of his own; and
·He did not receive the benefit of an interpreter.
As Kirby J said in Allesch v Maunz (2000) 203 CLR 172:
35.It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
(Footnotes omitted)
This is not an absolute requirement. Justice Kirby goes on to state that the principle “does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected …[a]ffording the opportunity is all that the law and principle require” at [38].
His Honour added:
40.Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. …
The majority described the requirement as affording the party “an adequate opportunity of being heard” (at [27]).
In National Companies and Securities Commission v The News Corporation Limited (1984) 156 CLR 296, Gibbs CJ said at 311–312:
In Russell v. The Duke of Norfolk, Tucker L.J. said: “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.” …The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.
(Footnotes omitted)
These circumstances, in the present case, included those of the mother and the child.
The mother is not a permanent resident of Australia. She has two young children in Country B and had no means of support in Australia. The mother was being supported by her husband and her family.
The father was not in a position to care for the child and was not likely to be able to do so. He had no financial resources that could be drawn upon to support the mother to remain in Australia. There was no suggestion that the father’s partner wished to care for the child.
The mother was therefore the only available person who could care for the child.
As can be seen, the father was served with the proceedings and instructed lawyers to appear for him. The essential question therefore, is whether the father should have been granted an adjournment on 21 February 2022.
I turn then to the transcript of the hearing.
At the outset, the lawyer appearing for the father was asked what the father’s position was as to the application. The solicitor advised that:
·He had limited instructions;
·The orders sought by the mother were opposed;
·The father sought the appointment of an Independent Children’s Lawyer;
·The child was domiciled in Australia and may lose his permanent residency if he left;
·Taking the child from Australia would mean he would be starting a new life for the third time; and
·The father hoped to resume the care of the child when he was released from gaol in three and a half months.
There was no application for an adjournment, although it was implicit in the comments that the father’s solicitor did not envisage the matter proceeding on that day.
In response to questioning from the primary judge, the father’s solicitor said that his client proposed that the child remain in the care of the mother until he was released from goal.
His Honour then suggested that it was likely that the father would be deported on his release. The solicitor agreed, but said that a submission had already been lodged submitting that the father should be permitted to remain in Australia because of his care for the child.
The following exchange then occurred:
[SOLICITOR FOR THE FATHER]: No, your Honour. It’s just because we were engaged last Friday and we have limited instructions at this stage. We have been ..... to prepare a proper affidavit in response to the mother’s application. And if we were afforded the extra time, it would be ..... so that .....
HIS HONOUR: But what’s the nature of the evidence that you wish to put before the court on and that if the matter was adjourned?
[SOLICITOR FOR THE FATHER]: Yes, because there are some allegations – well, there are also some allegations as to abuse, neglect in the affidavit that the father also seeks to address and that he also doesn’t agree. And also there are some other – there’s some evidence going to the father’s behaviour and just his general character that would make him an appropriate carer for the child ..... Australia along with the child and that it wouldn’t be in the best interests of the child to have to be relocated to [Country B] where, again, he would ..... lose his connection with the father. Yes. And ..... yes, your Honour. That’s why the father is also seeking the independent children’s lawyer and the ..... to be produced. It’s just that as [Country B] is ..... compared to Australia. That’s why the father has ..... the impact that .....
HIS HONOUR: Sorry. What’s that submission? Because [Country B] is a - - -
[SOLICITOR FOR THE FATHER]: It’s just ..... different system in that it’s ..... where she lives ..... schooling and all those ..... to the child’s welfare. We just have concerns that it will be quite a different change to the child in that ..... that ..... about how the child .....
HIS HONOUR: All right. Is there anything else you wish to add at this time?
[SOLICITOR FOR THE FATHER]: No, your Honour. That’s all.
(Transcript 21 February 2022, p.3 line 37 to p.4 line 17)
The above may be taken as an application for an adjournment so that an Independent Children’s Lawyer could be appointed and so that the father could adduce evidence of the kind outlined.
Counsel for the mother then made submissions going to the substance of the matter.
When asked if he wished to say anything further, the solicitor for the father said:
[SOLICITOR FOR THE FATHER]: Yes, your Honour. It’s just that ..... instructs that ..... the child ..... having sole – the mother sole parental responsibility, in effect, would cut the communication and – not only cut the communication, but cut all the father’s involvement in the child’s life, and given that the father is ..... in June, it would be a significant detriment to this child and also the father in pursuit of his rehabilitation that if the child would be removed from Australia.
(Transcript 21 February 2022, p.6 line 45 to p.7 line 3)
The following then occurred:
HIS HONOUR: All right. Thank you, [counsel for the mother]. [Solicitor for the father], you see that there’s a background that’s provided in the affidavit of the mother. Is there anything that the father disputes about the background at paragraphs – the basic background until – from paragraphs - - -
[SOLICITOR FOR THE FATHER]: I managed to .....
HIS HONOUR: Basically paragraph twenty – sorry – paragraph 14 through to paragraph 26. Would you just – it seemed to be reasonably non-controversial, but I just wanted to check that there’s nothing in dispute there.
[SOLICITOR FOR THE FATHER]: Yes. No. There’s nothing in dispute there, your Honour.
HIS HONOUR: You might – your client might take issue with some of the other things that are said, the limited time, etcetera, but those - - -
[SOLICITOR FOR THE FATHER]: Yes.
HIS HONOUR: Those basic background matters are in – all right. Good. Thank you.
(Transcript 21 February 2022, p.7 lines 24–43)
It is plain that the primary judge considered that an adjournment application was made. His Honour said in his reasons:
5.On the return of the matter on 21 February 2022, the Father was represented by [his] solicitor, whose principal submission has been that the Father wish to have the matter adjourned further to put further affidavit material before the Court. It was also urged to the Court by the Father to make an order for a Child Impact Statement to be prepared. That application for an adjournment was refused as there was no submission put forward which would suggest that there was any utility in adjourning the matter. There would be a significant detriment to the Mother and child if the matter was to be further adjourned.
The position thus reached is that the father had been given notice of the proceedings which were adjourned so that an interpreter could be arranged. During that adjournment, the father was able to organise a lawyer to appear for him who made an adjournment application and was able to identify, in the course of that application, what evidence would be adduced should the adjournment be granted.
The father was given the opportunity to participate in the proceedings. Whether that was an adequate opportunity turns upon whether the adjournment was properly refused.
I cannot accept the submission that it could never have been in the reasonable contemplation of the father or his lawyers that final orders would not be made on 21 February 2022. The mother had sought only final orders and her evidence raised issues of urgency. The father’s lawyer attended the hearing primed to make an adjournment application, which he then did. The primary judge was not satisfied that any of the matters outlined would have any effect on the outcome. That aspect of his Honour’s reasons was not challenged.
To the extent that the father and his lawyer were in any doubt that orders were being sought on a final basis, that doubt must have been dispelled by the submissions made on behalf of the mother.
There was no obligation on the part of the primary judge to warn the father that final orders were being considered.
The father’s lawyer did not seek to cross-examine the mother, although it is entirely unclear what issues could properly have been the subject of cross-examination.
The reality was that the father was not in a position to care for the child and it was more likely than not that he would never be in a position to do so. The mother, who was the only available person who could, was unable to remain in Australia indefinitely.
These matters were taken into account in the decision not to adjourn the proceedings. That was a discretionary decision to which the principles set out in House v The King (1936) 55 CLR 499 apply. No error of the kind described has been identified.
Finally, the father’s lawyer did not raise the issue of the lack of an interpreter. Whilst of course, it was highly desirable that the father have the benefit of an interpreter, he has failed to demonstrate that the lack of one had any impact on the outcome of the hearing.
The father submitted that had an adjournment been granted he would have been able to seek orders for equal shared parental responsibility and for more extensive opportunities to communicate with the child. Two difficulties arise. The first is that the father’s lawyers did not raise either matter as an issue. Secondly, it is difficult, if not impossible, to see how such orders could effectively operate as a matter of practical reality.
This ground does not succeed.
Should an order have been made for sole parental responsibility? (Ground 2)
The father submitted that his Honour’s reasons did not address s 61DA of the Family Law Act 1975 (Cth) (“the Act”) and that there was no evidence that justified an order for sole parental responsibility.
His Honour did address the issue saying:
24.The Father opposes the orders that are sought by the Mother, for the Mother to have sole parental responsibility and for the child to live with the Mother in Country B.
25.In general terms, the Father stated that he wished to be part of the child’s life and was concerned that the orders that were proposed by the Mother would prevent him from doing so. He was also concerned that an order for sole parental responsibility in respect of the Mother might undermine his capacity to communicate with the child.
…
34.The concerns that the Father has raised about orders being made giving sole parental responsibility to the Mother are met by the orders that the Father communicate with the child via video conferencing platforms and telephone at times agreed between the Mother and Father in writing.
The primary judge was therefore alive to the point. Again, the reality of the orders was that the child would be returning to live with the mother in Country B, with the father continuing to be imprisoned. The advantages of the mother having sole parental responsibility in these circumstances is obvious.
The father did not raise any concerns about the mother’s capacity to make appropriate long-term decisions for the child. Rather, his concern was to try to maintain a relationship with the child, which was addressed both in the reasons and in the orders.
No error has been identified.
Did his Honour err by failing to take account of the views of the child by:
(a) Accepting the mother’s evidence as to the child’s views without it being tested and
(b) Failing to provide an opportunity for independent evidence as to the child’s views to be obtained? (Ground 3)The ground is somewhat contradictory and is really a challenge to the refusal to adjourn under a different guise.
The primary judge recorded the child’s views at [12] and [18] and said:
23.The child has indicated to the Mother that he no longer wants to stay in Australia or be subject to the care of the Father. The child wishes to return to Country B and live with the Mother and with his siblings and Step-Father. The Mother states that prior to the Father’s arrest and incarceration, the child would often raise that he wished to travel to Country B and live with the Mother.
I do not see why the primary judge was not entitled to place weight on this evidence.
This ground does not succeed.
Did the primary judge err by failing to address the test in s 65DA(2) of the Act, the provisions of s 60CC of the Act and the pathway followed for the final determination? (Ground 4)
This is a reasons challenge. Reasons will be adequate where the judge’s reasoning process can be followed and the parties can understand how their contentions were resolved (Bennett and Bennett (1991) FLC 92-191; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
Whilst his Honour did not expressly refer to s 65DA(2) of the Act, there was no need to do so. The passages to which I have quoted explain why the order for sole parental responsibility was made and how the father’s submissions were resolved.
The father accepts, correctly, that the primary judge did not need to address every s 60CC consideration, but only those relevant and in issue (see for example SCVG & KLD (2014) FLC 93-582), but nonetheless submits that the primary judge erred by failing to address
ss 60CC(3)(a), 60CC(3)(b)(ii), 60CC(3)(c), 60CC(3)(i) and 60CC(3)(m); and that his Honour’s consideration of ss 60CC(3)(d) and 60CC(3)(f) was inadequate. The relevance of most of these sections was not explained. It is apparent they were not raised by the father at the hearing. As was accepted by counsel for the father at the appeal, the submissions made by his lawyer at the hearing were limited. However, the mother and the primary judge were entitled to proceed on the way the case was presented.
The only matter raised on the appeal was the asserted separation of the child from the father’s partner who had cared for the child since the father’s arrest (without any support from the father). Although the mother assumed the care of the child, the child continued to have a relationship with the father’s partner. This was noted by the primary judge at [17] and, accordingly, was taken into account.
The primary judge was not obliged to address matters not raised and not relevant to the issue before him. His Honour clearly had regard to the obvious considerations and the stark realities of the child’s situation.
No error has been shown.
Did the primary judge make material errors of fact? (Ground 5)
It was submitted that the primary judge made the following factual errors:
·Describing COVID-19 as occurring in 2019;
·In the absence of the mother there were no arrangements for the care of the child;
·The chid wished to live in Country B;
·The child was not “returning” to Country B, having never lived there; and
·The father’s visa would be revoked at the end of his sentence.
His Honour’s decision was given ex tempore and accordingly is to be given the appropriate indulgence.
In that light, the first and fourth dot points are entirely immaterial. No significance of weight was given to a “return” to Country B, it was merely in infelicitous language.
The primary judge’s finding as to the child’s views accorded with the evidence.
There was no evidence as to the alternative care of the child. There was no evidence, and no suggestion that the father’s partner was prepared to resume the care of the child, either temporarily or permanently.
Finally, the primary judge did not say that the father’s visa would be revoked at the end of his sentence. Rather, his Honour said that “it is likely that steps will be taken to deport the father” (at [30]). That was consistent with the concessions made by the father’s lawyer at the hearing.
This ground fails.
Conclusion
The appeal will be dismissed.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 August 2022
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