Thomason & Malhotra - [2010] FamCAFC 85

FAMILY COURT OF AUSTRALIA

THOMASON & MALHOTRA

[2010] FamCAFC 85

FAMILY LAW - CHILDREN – Appeal against decision of Federal Magistrate allowing the mother to travel to India with the child – Child’s best interests – Consideration of the risk of the child not returning to Australia – Surety for travel – Quantum of surety – Consideration of the mother’s financial circumstances – No error demonstrated

FAMILY LAW - DISCRETION – Challenges to the Federal Magistrate’s exercise of discretion – lack of utility in referring to factual situations and outcomes in other cases when challenging discretionary judgments – No error of discretion demonstrated – appeal dismissed

FAMILY LAW - COSTS – Applications for costs of the appeal – All parties legally aided – Proposition regarding quantum of surety arguable – No order as to costs

Family Law Act 1975 (Cth)
Family Law Rules 2004

House v The King (1936) 55 CLR 499
Kuebler & Kuebler (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Norbis v Norbis (1986) 161 CLR 513

APPELLANT:

Mr Thomason

RESPONDENT:

Ms Malhotra

INDEPENDENT CHILDREN’S LAWYER:

Bruce Peter Scott

FILE NUMBER:

BRC

2958

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

29 April 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Strickland & Murphy JJ

HEARING DATE:

18 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

1 September 2009

LOWER COURT MNC:

[2009] FMCAfam 1052

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cooper

SOLICITOR FOR THE APPELLANT:

Bridges Family Law

COUNSEL FOR THE RESPONDENT:

Mr Crisp

SOLICITOR FOR THE RESPONDENT:

Burchill & Horsey Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Brasch

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid, Queensland

Orders

The appeal is dismissed.
There be no order for costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 72 of 2009
File Number: BRC 2958 of 2008

Mr Thomason

Appellant

And

Ms Malhotra

Respondent

REASONS FOR JUDGMENT

This is the father’s appeal against orders made by Federal Magistrate Purdon‑Sully on 1 September 2009 which allowed both the father and the mother to take their four year old daughter out of Australia for 30 days each year, subject to the provision of a surety of $5,000.

Background

The mother (32) was born in India, but has permanent resident status in Australia. The father (38) was born in Australia.
The parties met on a “matrimonial website” in 2002 and met face to face when the father travelled to India in January 2003. They were married in India the following month and the mother then migrated to Australia in November that year.
Following numerous separations dating from about February 2006, the parties finally separated in March 2008.
There was only one child of the marriage, S, who was born in July 2005.
The father’s extended family live in Australia. The mother’s family live in India. The mother has not returned to her homeland since coming to Australia, save for one visit during which S remained with the father.
The father commenced proceedings in 2008 seeking parenting orders and an order preventing S’s removal from Australia. The matter was listed for trial in the Federal Magistrates Court on 31 August 2009.

The hearing before the Federal Magistrate

Prior to the hearing before the Federal Magistrate each party filed a Case Outline. After these were exchanged, the mother and father reached agreement in relation to the parenting orders to be made. It was agreed S should live with the mother and spend time with the father, including overnight and half of all school holidays. The only issue remaining related to the mother’s application for permission to take S to India on holidays each year.
At the outset of the hearing, counsel identified the evidence upon which they intended to rely and asked that the matter be dealt with “on the papers”. After the Federal Magistrate stood down to read the material, counsel confirmed that the matter was to proceed without cross-examination. The mother’s counsel did not seek to expand on his written outline. After a brief interchange with the Federal Magistrate, the father’s counsel also advised that he did not seek to expand on his written outline. Counsel for the Independent Children’s Lawyer had not prepared a written outline, but made oral submissions.
When counsel for the Independent Children’s Lawyer completed his submissions there were some further exchanges between the Federal Magistrate and counsel, following which her Honour stood the matter over to the following day for judgment to be delivered. According to the transcript, the substantive part of the hearing had taken just 22 minutes.

The Federal Magistrate’s reasons

The Federal Magistrate noted that the mother’s intention in applying for permission to take S overseas for not more than 30 days a year was to enable her to visit her family in India. She noted that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”). She recorded that “the mother seeks to provide the sum of $5,000 to be deposited with the Registrar of the Court to secure S’s return to Australia”.
Her Honour noted that although the father opposed the application, the Independent Children’s Lawyer did not. She recorded the submission by the Independent Children’s Lawyer that the proposed travel “is not a significant risk and that I [the Federal Magistrate] must consider if the security offer provides a sufficient incentive for the mother’s return”.
Having set out the background and evidence relied upon, her Honour noted that the best interests of the children are the paramount consideration in dealing with applications for orders in relation to children. She then said that in informing her discretion she was required to follow the “legislative pathway” and in doing so proposed “to consider, where not otherwise considered, the legal principles outlined in Kuebler & Kuebler (1978) FLC 90‑434 and Line & Line (1997) FLC 92‑729”.
The Federal Magistrate also recorded that in coming to her decision she had had regard to the objects and principles of Part VII of the Family Law Act 1975 (Cth) including those identified in ss 60B(1)(a), 60B(2)(b) and 60B(2)(e), which she said appeared to have particular relevance. Her Honour then dealt with each of the relevant considerations contained in ss 60CC(2) and 60CC(3). She also discussed the matters referred to in ss 60CC(4) and 60CC(4A). We will refer to her discussion of those matters when we come to consider the various grounds of appeal.
Her Honour concluded her discussion of the s 60CC factors by saying:
58.In summary, whilst I am satisfied that there exists a risk in the mother taking [S] to India, it is a manageable risk, in my view, and not a significant risk.
59.Further, whilst the sum of $5000 is not a significant sum of money and possibly unlikely to meet all of the father’s costs if he is required to pursue any recovery options in India, I must and do take into account the mother’s financial circumstances and find that it will provide some incentive for her return which, when coupled with the risk to her of losing the primary care of [S] should she not return, provides overall sufficient incentive for the mother’s return.
60.I find that it is in [S’s] best interests to visit her extended family, including her grandmother, in India, in the care of her primary carer as proposed by the mother, and, on the mother’s proposal, the father is also afforded a similar opportunity to travel overseas with [S].
Finally, “just for the sake of completeness”, her Honour noted that the Independent Children’s Lawyer had raised “the issue of mirror orders”. Her Honour dealt with that topic by saying:
62.I have given consideration to that given that the Independent Children’s Lawyer raised it properly on the evidence. However, there was no evidence before me to assist me in making a decision on the feasibility of such orders. It is likely that the obtaining of such evidence would have delayed the hearing of this matter in circumstances where, as I earlier indicated, the matter has been before the court since April 2008, well over 12 months, and in circumstances where the matter was listed for a three day in [sic] trial in March 2009 when this was an issue and where the parties have had more than enough time to turn their minds to how their various concerns could be addressed, including by way of mirror orders and make appropriate inquiries, including overseas inquiries.
63.For that reason, I do not see that any useful purpose can be served by further delaying the matter and it did not appear to be a course that anyone pressed on me in any event, other than it was raised by the Independent Children’s Lawyer.

The Grounds of Appeal

The father’s primary complaint concerns the decision to allow the mother to remove S from Australia. He asserts that the Federal Magistrate’s discretion miscarried because she failed to give any or sufficient weight to a miscellany of matters and because she made erroneous findings of fact.
The secondary, albeit strongly pressed, complaint is that the Federal Magistrate erred in setting the surety at $5,000. It is submitted that her Honour “misapplied the criteria” when determining the level of surety and that the amount was outside the reasonable range of discretion.
The Independent Children’s Lawyer does not support the father’s primary complaint, but agrees that the $5,000 surety is inadequate. The Independent Children’s Lawyer submits that the figure should have been $20,000, which was the sum said to have been “proffered” by counsel for the mother at the hearing.

Grounds 1(h), 1(i), 1(j) and 2 – findings of fact

The father’s submissions ignored Rule 22.22(2)(a) of the Family Law Rules 2004, which requires that the summary of argument must “set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on”. The father’s submissions instead were arranged around various themes, with it being left to the Court to endeavour to determine the ground to which they related. The inconvenience associated with this approach was exacerbated by the fact that the first ground of appeal comprised ten sub-grounds, some of which were directed to matters of weight and some of which asserted error in findings of fact. We intend first to discuss those grounds asserting errors of fact.
In dealing with these complaints it is important to record that the Federal Magistrate was not asked to consider all of the material filed. Counsel for the father advised her Honour that he was relying on only 16 out of 223 paragraphs of the father’s affidavit. Counsel for the mother said he was relying only on the trial affidavit of the mother, but he also handed up a supplementary Outline of Argument, which he said referred to parts of the family reports on which he intended to rely. Counsel for the Independent Children’s Lawyer did not seek to rely on any of the material filed by the Independent Children’s Lawyer and said he was relying only on “case law”.
Some of the submissions made on behalf of the father in support of the appeal overlooked the fact that her Honour had before her only portion of the material originally relied upon. Her Honour did not overlook this fact as she expressly recorded (at paragraph 53 of her reasons) that the parties had asked her to “consider only specific evidence”.
Grounds 1(h) and 1(i) attack findings concerning the mother’s commitment to the facilitation of a relationship between S and the father. They assert that:
1.The Federal Magistrate has erred in the exercise of Her Honour’s discretion in assessing the risk of the child’s non-return or extended stay in India as a manageable risk in that in making this assessment, Her Honour:
…
h.based this assessment on an erroneous finding of fact that there was no evidence that the mother was not committed to the relationship between the child and the father;
i.based this assessment on an erroneous finding of fact that there was no evidence of the mother’s failure to facilitate the relationship between the father and the child; …
Ground 1(h) is directed to paragraph 29 of the reasons where her Honour found there was “no evidence, based on the mother’s conduct, which would suggest that she is not committed to fostering [S’s] relationship with her father”. Ground 1(i) is directed to the finding in paragraph 40 that “there is no evidence to suggest that the mother has not been willing to promote and facilitate [S’s] relationship with the father”.
Counsel for the father submitted in his written argument that:
23…
(b)Evidence in the family reports was clear that the mother had demonstrated a negative attitude to the father having a significant involvement with the child; that the mother was fixated upon the shortcomings of the father and could not envisage an escalation of the father’s time, that time for the father to spend with the child had not progressed in the interim because of the mother’s unwillingness to promote further time… (footnotes omitted)
He later went on to submit:
37.The parties came to trial with the mother failing to facilitate any increase of the time and relationship with the father to trial., it was not open to the Federal Magistrate to draw any conclusion on the evidence except that until the day of trial, the mother had not moved the relationship of the child any further than that from the family report and that it needed to be noted that only from within the crucible of the trial day, did the mother contemplate giving the father time with the child. On her own she was incapable of doing so and the Family report provided evidence to the Federal Magistrate of same. This seems to have been ignored by the Federal Magistrate when she states there was no evidence and yet referred to the Family Reports both in transcript and in reasons for Judgment.
The absence of merit in Grounds 1(h) and 1(i) can be demonstrated by reference to the family reports. The first report was prepared following assessment of the family in July 2008, some months after the final separation. At the time, the mother was living in a refuge as she claimed she had been subjected to violence by the father, before and after the separation. The father had not seen S since the separation and was reintroduced to her in the presence of the report writer.
It is unnecessary to record all of the observations made by the report writer concerning the interaction between father and child at the reunion. It is sufficient to say that the father’s conduct was such as to lead the report writer to recommend, as the mother was proposing, that the father’s time with S should be supervised. The report writer also recommended that consideration be given to a psychiatric assessment of both parties, but particularly the father. Although the report writer recorded that the mother was “unable at this juncture to contemplate unsupervised time between the child and the father”, she also said that the mother “appeared to appreciate the importance of the child having a meaningful relationship with her father in the longer term”.
The report writer provided a second report in March 2009. Having recorded that the father was meant to be having supervised contact twice a week, she went on to say:
2.3Evidently visitations initially occurred at the Ipswich contact centre were but were ceased, following difficulties between the father and the centre and the father’s preference not to return. The parents have been undertaking handovers at agreed venues, such as police stations, which have been difficult for the mother who is reliant on public transport and had preferred the contact centre.
2.4Both parties reported during the interviews for this Report that there have been ongoing tensions and communication issues between them and difficulties with regard to the facilitation of both communication and time between [S] and her father. This has resulted in minimal and inconsistent visitations.
2.5Both parties indicated that they need clear defined Orders as to when and how to move [S] between them for time with her father, as they cannot communicate and cooperate to the extent that consistency can be established in [S’s] time with her father.
2.6The mother continues to seek supervision of [S’s] time with the father and is unable to contemplate when unsupervised time should occur.
2.7The father is seeking unsupervised and increasing time which will progress to overnight time, so that he can be significantly involved in [S’s] care during school terms and during school holiday periods in the future.
The report writer also said:
6.23The mother remained somewhat focused upon historical concerns with regard to the father’s functionality, particularly throughout the relationship with her.
6.24She found it difficult to embrace any trust in relation to him caring appropriately for [S]. Her ambivalence as to being able to embrace a time frame for unsupervised time between [S] and the father was likely underpinned by these historical issues and mistrust.
6.25She recognised [S’s] obvious attachment with her father and enjoyment of time with him. She felt the need for ongoing supervision of this time though.
6.26She noted that she was quite content with the supervision that was occurring initially at the contact centre. She expressed disappointment as to this breaking down, essentially due to issues between the father and the supervisors at the centre.
…
6.46The mother appreciated that in time [S] will have unsupervised time with her father. She indicated that she would cope better with unsupervised time if [S] was older and able to express and protect herself. She was conscious of [S’s] young age and importance of having stability and continuing to develop well.
In reporting on her observations of the interactions between S and her father at the time of preparation of the second report, the report writer said:
7.4With regard to [S] having time with her father, the mother was appropriately embracing. She explained to [S] that she was to stay in the observation room and play with her daddy whilst she (the mother) waited in reception. She kissed [S] goodbye and [S] readily anticipated seeing her father.
7.5In the context of the observation with the father, [S] went with the report writer to the next room where her father was waiting. She excitedly ran to him and cuddled him once the door was opened. She and her father greeted each other affectionately and it was obvious that they have a strong bond.
…
7.8The attachment and relationship between [S] and her father appeared secure. (original emphasis)
The report writer concluded by making various recommendations about moving the contact arrangements away from supervised visits, initially on a daytime basis and then extending to overnight.
The assumption underlying the submissions in support of Grounds 1(h) and 1(i) is that it was the mother’s fault that contact between S and the father had (apparently) not moved beyond the stage observed at the time of the second family report. We are not satisfied it would have been appropriate for her Honour, given the limited evidence, to assume that the failure to progress contact arrangements was the fault of the mother.

It was not in dispute that in the period between the first and second reports S had re‑established a good relationship with the father. Whilst the mother had concerns about the father having unsupervised time, those were initially validated by the recommendation of the report writer. The report writer also acknowledged, when later recommending a move away from supervised time, that the mother’s difficulty in trusting the father to care appropriately for S was “likely underpinned” by “historical concerns with regard to the father’s functionality, particularly throughout the relationship with her”.
The Federal Magistrate appears to have accepted this assessment, since she said in paragraph 42 of her reasons:
The mother’s concerns in the context of these parenting proceedings related to [S’s] exposure to family violence and other welfare concerns which appear to have been resolved in the context of the final orders that both parents seek that I make.
The fact that the mother had consented to orders for the father to have extended unsupervised contact with S assumes greater significance when considered in light of the unchallenged finding (in paragraph 32 of the reasons) that the mother had previously complied with Court orders.
In our view it was open to her Honour to proceed on the basis that the mother would be prepared to facilitate the relationship between S and the father, at the every least to the extent of complying with the consent orders. Accordingly, we consider the father’s complaints in Grounds 1(h) and 1(i) have not been made out.
We do not intend to discuss Ground 1(j) which asserts that the Federal Magistrate based her assessment on “an erroneous finding of fact that there was no evidence of the mother lacking parenting capacity”. No submissions were advanced in support of this ground. In any event we note that the father consented to an order pursuant to which S will spend the majority of her time in the care of her mother.
Ground 2 also asserts error in a finding of fact. It was expressed in these terms:
2.The Federal Magistrate has erred in fact in finding on the evidence that the risk of the mother not returning is lessened because if she did not return the father would be able to secure the return of the child and then to seek orders in relation to residence of the child in Australia.
This ground appears in part directed at paragraphs 34 and 51(x) of the reasons where the Federal Magistrate said:
34.Indeed, it would be a significant risk to the mother to not return to Australia because [S] is an Australian citizen and if the mother chose to stay and was located then it would likely result in not only a change in [S’s] primary care from her to the father but possibly in the mother being afforded supervised time only with [S]. So there are risks to the mother and, as a consequence, there is an incentive to her in complying with the order and that incentive is real and tangible.
…
51.…
(x)Further, I must, in the mix of relevant factors that I consider in relation to the issue of security, also take into account the family report writer’s assessment of the mother as not being a flight risk, the additional incentive to which I earlier referred, and that is that if the mother does not return and is found then it is likely that [S] will be placed with her father and any time that the mother thereafter spends with [S] may be curtailed; …
Whilst we accept it may not have been correct for her Honour to say that an abduction of S would “likely result” in a change of residence, it was not suggested this was a far-fetched outcome either. It must be recalled that the Federal Magistrate was giving her reasons ex tempore. If her Honour had the luxury of reflecting for longer, she may, in paragraph 34, have substituted the phrase “then it may result” for “then it would likely result”. Phrased thus, the sentiment her Honour was seeking to convey would have been unimpeachable. Indeed, in the course of hearing the submissions her Honour said:
… I think in your submissions you’ve said that there’s no … incentive for the mother to return but there is an incentive, isn’t there, because the child is an Australian citizen. If she doesn’t return with the child, I’m sure her lawyers have pointed out to her that in the context of, you know, they’re giving advice – that if, for example, she didn’t return to Australia and the child was located and brought back to Australia, there would be a risk that the primary care of this child would be placed with the father. So, there is an incentive for her to return, isn’t there? (Transcript page 9, emphasis added)
Counsel for the father, in our view properly, conceded that judicial officers exercising family law jurisdiction will sometimes make statements designed to ensure a parent behaves in a way they consider will promote the welfare of the child, even though the statement may not withstand critical analysis. It was not suggested that making such statements could amount to appealable error. In our view, her Honour was doing no more in paragraphs 34 and 51(x) than reinforcing to the mother the fact that there may be grave consequences in the event she elected to retain S in India.
It was otherwise submitted, apparently in support of this ground, that “it is not certain that the child could be located in India if she was not returned”. In this regard it is important to note that the Federal Magistrate did not find that the child would be able to be located if she was retained in India. The possibility she might not be able to be located was implicitly accepted by how her Honour expressed herself in the first sentence of paragraph 34 of her reasons. There is accordingly no reason to consider that her Honour did not take this into account in making the decision she did concerning the risk involved.
Other submissions that might have been intended to support this ground relate to issues associated with the Indian legal system. There are other grounds of appeal specifically directed at that matter and we will discuss the remaining submissions when we come to them.

Grounds 1(a) to 1(g) – the exercise of discretion

Grounds 1(a) to 1(g) set out various complaints which it is asserted resulted in the Federal Magistrate’s discretion miscarrying. Notwithstanding what was put to us in submissions by counsel for the father, examination of the grounds reveals that the complaints largely go to matters of weight. The grounds were expressed in these terms:
1.The Federal Magistrate has erred in the exercise of Her Honour’s discretion in assessing the risk of the child’s non-return or extended stay in India as a manageable risk in that in making this assessment, Her Honour:
a.found herself satisfied against the weight of evidence that the mother’s promise to return will be honoured;
b.found herself satisfied against the weight of evidence that the mother’s promise to return is likely to be honoured;
c.failed to give sufficient or any weight to the fact that the country to which the child will be taken is not a signature of The Hague Convention on the Civil Aspects of International Child Abduction and does not have legal mechanisms or institutions in place for the return of children taken to it from Australia and not returned;
d.failed to give sufficient or any weight to the lack of any evidence that the father would be able, as a non‑Indian and non‑resident of India, to secure the return of the child from India within the Indian legal system in the event of non‑return;
e.failed to give sufficient or any weight to the potential impact on the father’s rights of the fact that in the country to which the child will be taken, the mother is a national with the legal standing this affords and the father is not;
f.failed to consider the father’s lack of the means to finance an attempt to secure the return of the child from India in the event of non‑return;
g.refused to consider the impact on the risk of non‑return of the fact that the mother has no assets or family ties in Australia; …
In support of these grounds it was submitted that the factors to be considered in the assessment of risk of non‑return of a child from overseas travel had been set down by the Full Court in Line & Line (supra). The factors were said to be as follows:
(a)The existence or otherwise of continuing ties between the departing parent and Australia (such as the ownership of real estate, the existence of business interests, or the residence of close family or friends here);
(b)The existence and strength of possible motives not to return (including the level of conflict between the parents, particularly over child related issues); and
(c)The existence and strength of possible motives to remain in the other nominated country (such as the ownership of real estate, the existence of business interests, or the residence of close family and/or personal friends there); and
(d)Whether the country of travel is a signatory to the Hague convention.
It was submitted on behalf of the father that the Federal Magistrate had not systematically addressed or referred to the factors mentioned in Line & Line in finding that the risk in the present case was “manageable”. Reference was then made to matters it was asserted her Honour had particularly not addressed, or to which she had not given appropriate weight. These are largely the matters referred to in each of the subparagraphs of Ground 1 set out above.
In response to these and other submissions advanced on behalf of the father, counsel for the mother submitted that the appeal was from a discretionary judgment. He referred to well-known authorities concerning the constraints on appellate courts in interfering with such judgments. It was also submitted that many of the grounds were “weight challenges” and reference was again made to well-known authority relating to the difficulties inherent in such challenges. Overall, it was submitted that her Honour had adopted the appropriate approach in the exercise of her discretion; had followed the legislative pathway; had properly considered the best interests of the child as the paramount consideration; and had taken into account the objects and principles of the Act.
Counsel for the mother did accept that the factors to be considered in assessing the risk of non-return from overseas travel had been set down in Line & Line, but said that relevant factors had also been identified previously in Kuebler & Kuebler (supra). It was submitted that the Federal Magistrate was not required to systematically consider in isolation the factors the father’s counsel had drawn from Line & Line, and that her Honour had “correctly addressed, considered, referred and gave appropriate weight to each and every factor”.
We accept the submissions made on behalf of the mother. Her Honour observed in paragraph 23 of her reasons that the relevant legal principles had been laid down in Kuebler and Line. She said those principles were so well known it was unnecessary to outline them in any detail, especially as the cases had been referred to in the submissions. We accept that this was an appropriate approach to adopt, especially in an ex tempore judgment. Her Honour was not then required to refer to and discuss each and every one of the “factors” systematically as if they were provisions contained in a statute.
Having rejected the general propositions made in support of these grounds, we now turn to the specific complaints, which have already been set out above.
Grounds 1(a) and 1(b) are all but identical. One difficulty we perceive with them immediately is that her Honour did not make a finding that “the mother’s promise to return will be honoured”. Nor did she make a finding that “the mother’s promise to return is likely to be honoured”, although that proposition can be safely inferred from her reasons.
The relevant findings were contained in paragraphs 31 to 33 of the reasons, where her Honour said:
31.Nor is there any evidence that would enable me to conclude that there is a significant risk of the mother not returning [S] to the father…
32.The mother has complied with court orders to date. She has, on one view, acted admirably to date in seeking the assistance of courts and re‑establishing her life since separation in circumstances where English is not her mother tongue. She has been required to engage in a foreign legal process without a significant support network, certainly no “on the ground family support”, without significant financial means, and in this regard I note that she is also reliant on public transport. She has taken a number of steps which she outlines in her evidence to establish her life in this country.
33.The father submits that the key element of his reticence in allowing [S] to travel for any period to India is the risk of the mother not returning. However, whilst I accept that there is a risk, it is the assessment of that risk I must make. On the evidence, I am not satisfied that it is a significant risk and I am satisfied that the risk is manageable.
It was submitted on behalf of the father that in arriving at her decision concerning the risk, the Federal Magistrate had given “no real weight or consideration … to the fact that the Mother had already deviated from travel plans in the past and stayed in India for a visit for much longer than intended”. However, the circumstances of that trip were so different to what the mother now contemplates that we consider her Honour was entitled not to take it into account.
The mother’s one visit to India since the marriage occurred in 2007/08. According to the father’s evidence, which was not challenged, the mother was to have returned to Australia on 16 December 2007, but delayed her return until 26 January 2008. The mother’s evidence was that the father had previously promised that he would allow her to take S to visit her family, as her grandmother was ill. The mother alleges that when the time came for her to depart, the father refused to give her S’s passport. She therefore left S behind with the father. She says she only delayed her return to Australia as her grandmother was gravely ill and her mother’s own health was bad.
There are two significant matters to note from this brief recitation of the circumstances of this trip. First, the child was in the care of the father. Secondly, there was no court order requiring the mother to return to Australia by a particular date. Furthermore, the mother’s bona fides in staying longer than she planned can scarcely be in doubt, given her grandmother died soon after the mother’s return to Australia.
The more fundamental defect in the complaints contained in Grounds 1(a) and 1(b) is that the mother’s evidence was not challenged before the Federal Magistrate. The mother had given evidence that she wanted to go to India for a finite time and for a fixed purpose and then to return to Australia. As her Honour pointed out in paragraph 51(j) of her reasons:
In the end, the parties sought that I dealt with this matter on the papers. The father did not seek to test the mother’s evidence as to the purpose of the trip or her motives by way of cross‑examination.
Her Honour was, in our view, quite right to take this approach. The only way for the mother’s evidence to be effectively challenged was to have her take the witness stand. The father’s representative elected not to require her to do so.
Although the father had alleged in his affidavit that during the marriage the mother had expressed a desire and intention to permanently remove the child to India, this assertion had been clearly put in issue in the mother’s Supplementary Case Outline (at paragraph 9). Also, as her Honour observed in paragraph 51(h):
The evidence of the father in this regard must, of course, be considered in the context of a disintegrating relationship with frequent separations and the mother’s evidence that she felt isolated and unsupported in Australia…
Furthermore, the report writer had concluded that the mother did not present as likely to abduct S. The Federal Magistrate noted that the report writer “had the benefit of an interview with the mother”, which clearly put her in a position of advantage to her Honour since she had not heard the mother utter one word in the brief hearing. In the absence of any cross‑examination of the mother, and in light of this unchallenged finding of the report writer, we consider it was open to her Honour to conclude that whilst there was a risk of the child not being returned, it was not “a significant risk”. There is thus no merit in Grounds 1(a) and 1(b).
Ground 1(c) asserts a failure on the part of the Federal Magistrate to give sufficient or any weight to the fact that India is not a party to the Hague Convention “and does not have legal mechanisms or institutions in place for the return of children taken to it from Australia and not returned”.
Her Honour was well aware that India is not a party to the Hague Convention. She mentioned this in paragraphs 5, 20 and 51(z) of her reasons. Her Honour was therefore aware that the arrangements in place under the Convention would not be available if the mother did not return S. This was clearly therefore a matter which her Honour took into account.
Furthermore, there was no evidence before the Federal Magistrate to support the second proposition contained in this ground that India “does not have legal mechanisms or institutions in place for the return of children taken to it from Australia and not returned”. Counsel for the father did seek to draw our attention to a recent decision of the Indian Supreme Court (V Ravi Chandran v Union of India & Ors [2009] INSC 1742) concerning an application for a writ of habeas corpus to secure the return of a child who had been retained in India. Even if it was appropriate for us to take into account matters pertaining to the domestic law of India in circumstances where no effort was made to provide such evidence to the Federal Magistrate, the case mentioned by counsel does not demonstrate that India does not have “legal mechanisms or institutions” to deal with cases involving international child abduction.
It was further submitted by counsel for the father that “where the Courts have allowed travel to countries which are not signatories to the Hague Convention with the provision of surety, there has not been a significant risk of the travelling parent not returning”. Reference was made in particular to four cases involving travel to non-Hague countries. On the basis of those authorities it was submitted that “where there is a proposal of travel to a country which is not a signatory to the Hague Convention, any real risk of non‑return warrants a refusal to allow the travel”.
We do not find reference to factual situations and outcomes in other cases to be of any assistance in determining this appeal. As was said by the High Court in House v The King(1936) 55 CLR 499 at 504-5 (and as has been repeated on countless occasions since):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance...

In our view, the manner in which the father’s case was presented ignored the fact that it is the essence of judicial discretion that:
on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere: per Asquith LJ in Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at 345, cited with approval by Brennan J in Norbis v Norbis (1986) 161 CLR 513 at 539 – 540.
Just as diligent research will usually find cases determined on their own facts which appear to provide support for a particular discretionary outcome, other cases will usually be found which appear to provide support for a contrary outcome. Ultimately, we consider it is a waste of the Court’s time for counsel to trawl over what may be regarded as “fact cases” to try to provide support for one or other of the competing propositions – especially as it is very rarely the case that the facts in one matter will be identical to those in another.
This brings us to Grounds 1(d) and 1(e), which relate to the status of the father and the mother in any proceedings that may be required in India to secure the return of S. The thrust of the grounds is that the mother would be in a position of advantage because she is an Indian.
Counsel for the father made reference in his submissions to difficulties the father could experience in the event that he sought to utilise the courts of “a country that is currently anti-Australian (and was so at the time of trial)”. This proposition, like Grounds 1(d) and (e), has no merit. There was no evidence before the Federal Magistrate of any “anti-Australian sentiment” in India, let alone amongst the judiciary who would be called upon to determine any application the father might make.
If it was part of the father’s case that his status as a non‑Indian and a non-resident would have any impact on the likely outcome of proceedings in India, the onus was on him to provide that evidence. It was not for the Federal Magistrate to divine, presumably by reference to the media, that some special obstacle might be placed in his way in proceedings in India. Her Honour herself pointed out in the course of the hearing that she had been provided with no evidence to support the propositions now sought to be advanced by these grounds (Transcript pages 10 and 13). There is accordingly no merit in these complaints.
Ground 1(f) asserts that that the Federal Magistrate failed to consider the father’s lack of the financial means to secure the return of the child from India. However, it was conceded before us that there was no evidence of the father’s means, save for the fact that he had employment. Notwithstanding the lack of evidence, the Federal Magistrate expressly found that “the father is not a person of significant financial means”. There is no basis upon which we could conclude that her Honour failed to take that fact into account, along with all of the other relevant considerations.
Ground 1(g) asserts that the Federal Magistrate “refused to consider the impact on the risk of non‑return of the fact that the mother has no assets or family ties in Australia”. There is no substance in this complaint. Her Honour was well aware of the mother’s financial position and the lack of family ties in Australia. Her view of those matters was plainly stated at paragraph 51(f) of her reasons in these terms:
Whilst the mother has no assets or family ties to Australia … that is not definitive of the issue of risk assessment. If that was the case then those litigants who come before this court who are without financial means, often women in the mother’s situation who have married an Australian citizen having left their native homeland to make a new life for themselves in Australia, doing so without property, leaving friends and family behind, would be discriminated against. In the end, it is a factor that I must properly consider in any assessment of significant risk, that is, the fact that the mother does not have property or significant ties to this country, and I have considered it.
It is apparent from these remarks that her Honour took into account the fact that the mother did not have assets or family ties in Australia. However, as her Honour said, these matters are not definitive.

Grounds 6 and 7 – prioritisation of statutory considerations

Grounds 6 and 7 are in the following terms:
6.The Federal Magistrate has erred in law by prioritising the secondary consideration of the child having an opportunity to form relationships with her extended family over the primary consideration of the meaningful relationship between the child and the father.
7.The Federal Magistrate has erred in law by prioritising the secondary consideration of the child being exposed to her Indian heritage over the primary consideration of the meaningful relationship between the child and the father.
Quite apart from the inaccurate assumption that the “primary considerations” in the legislation must always trump the “additional considerations”, these grounds also assume that her Honour’s decision will result in S being denied a meaningful relationship with her father. Her Honour did not consider there was a significant risk of S not being returned to Australia, and hence it was not a question of “prioritising” certain factors under the legislation over others. Provided that the child was returned, which her Honour anticipated she would be, the child would have an ongoing meaningful relationship with her father, whilst at the same time having the benefit of establishing relationships with extended family, including her maternal grandmother, as well as being exposed to her Indian heritage.

Grounds 8 and 9 – impact of separation on relationships

Grounds 8 and 9 are in substantially similar terms. They assert that the Federal Magistrate:
… failed to give sufficient or any weight to the lack of any evidence that the relationship between the child and the father will not suffer detriment by the separation between the father and child over the period of time that is granted for the overseas travel [and]
… erred in law in failing to give primary consideration to the meaningful relationship between the child and the father in not considering the detriment to that relationship of the separation between the father and child over the period of time that is granted for the overseas travel.
Passing over the grammatical difficulties in these complaints, her Honour accurately recorded, in paragraph 27 of her reasons, that there was no evidence “to suggest that the father’s relationship with [S] will be compromised by her being able to spend up to 30 days once a year overseas in the care of her primary carer”. She also pointed out, in the following paragraph, that S had previously spent more than that amount of time in the sole care of her father without any evidence of her relationship with her mother being compromised as a consequence. These findings demonstrate the lack of merit in these grounds.

Grounds 10 and 11 – mother’s need to travel to India

Ground 10 asserts that the Federal Magistrate erred in “finding or assuming that the maternal grandmother’s health was such as to necessitate that the child travel to India”.
It is apparent from consideration of paragraph 51(j) that the Federal Magistrate accepted the evidence of the mother that S’s grandmother was unwell. However, she did not say that the grandmother’s state of health was such as to “necessitate” the child travelling to India. The Federal Magistrate did no more than point out, in paragraphs 37 and 38, that unless S was permitted to travel to India she may miss the opportunity to meet her grandmother.
By Ground 11 it is asserted that her Honour erred “in finding or assuming that the child travelling to India was necessary for her to have contact with her Indian relatives in circumstances and failing to consider the capacity of the Indian relatives to travel to Australia to meet the child”.
Her Honour found, properly in our view, that there was no evidence on which she could “conclude that the mother’s relatives are people of means”. Quite apart from the fact that it would be probable that S would see many more relatives in India than would be able or prepared to travel to Australia to see her, such an arrangement would not give S the exposure to Indian culture that she would be able to obtain by visiting the country of her mother’s birth.
For these reasons there is no merit in Grounds 10 or 11.

Grounds 3, 4 and 5 – the quantum of the surety

Grounds 3, 4 and 5 were directed to her Honour’s decision to set the level of surety at $5,000. The grounds were expressed in these terms:
3.The Federal Magistrate has misapplied the criteria for deciding the level of surety to be paid by the travelling parent in that Her Honour has:
a.failed to order a surety sufficient to fulfil the purpose of “providing a sum which will realistically entice the person removing the child to return” Line v Line (1997) FLC 92 729;
b.failed to order a surety sufficient to fulfil the purpose of “providing a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the children” Line v Line (1997) FLC 92 729;
c.failed to give sufficient or any weight to the fact that India is not a signatory country to The Hague Convention on the Civil Aspects of International Child Abduction in the determination of the amount of surety that would suffice to fulfil the purpose of “providing a sum to adequately provision the party left in Australia to take action and proceedings in Australia and overseas to obtain the return of the children” Line v Line (1997) FLC 92 729;
d.placed excessive weight on the consideration of the financial means of the mother;
e.in considering the financial means of the mother, failed or refused to consider the capacity of the mother to obtain financial assistance from her family; and
f.failed to consider or to give due weight to the financial means of the father Line v Line (1997) FLC 92 729.
4.The Federal Magistrate’s decision to set the surety at $5,000.00 was so clearly unreasonable that it was a failure properly to exercise the judicial discretion.
5.The Federal Magistrate’s decision to set the surety at $5,000.00 was so clearly unjust that it was a failure properly to exercise the judicial discretion.
The first matter to note is that none of these grounds makes express reference to the claim that the mother “offered” to provide a $20,000 surety during the hearing before the Federal Magistrate. This issue was raised directly for the first time in the written submissions; however, we accept that it can be seen as coming within the terms of Ground 3(e) – since the $20,000 would have to be provided by the mother’s family. We propose to deal with that issue separately, after first dealing with the father’s other complaints about the level of the surety.
It will be seen that the grounds of appeal related to the level of the surety rely heavily on the decision in Line & Line (supra). Counsel for the father commenced his written submissions by referring to that decision in these terms:
30.In Line, an amount of $3,000.00 was considered inadequate surety for travel to the United States of America, which is a signatory to the Hague convention, and $20,000.00 was ordered to be paid. In the light of such a finding in 1997, when costs would have been much less $5,000.00 cannot be considered sufficient to fulfil the purpose of the surety to sufficiently provision the father to obtain the return of the child if necessary.
Counsel for the father went on to submit:
31.There is no reasonable basis to found a belief that $5000.00 would place the father in a position to travel to India, as a white Australian and seek a solution to recover his daughter from a country that is currently anti-Australian (and was so at the time of trial), has a population of over 700 million in which to hide. To assume that $5000.00 would pay adequately for the father to fly to India, seek Senior Counsel to agitate whatever case he might have if he has standing and recover the child (all of which was submitted to her Honour for due consideration) was clearly an unjust error.
It was otherwise submitted that the Federal Magistrate had “placed improper emphasis upon the mother’s means as the overriding concern so that the surety imposed would not preclude travel”.
In response, counsel for the mother submitted that the Federal Magistrate had properly addressed and given appropriate weight to the factors identified as being relevant in Line & Line and further submitted that these factors could not be taken in isolation. It was also argued that the father’s submissions failed to consider properly “the delicate matter of the exercise of the discretion in fixing an appropriate level of security”. It was further submitted that the father had placed no evidence before the Federal Magistrate “as to his view of a realistic sum for security and why”.
Counsel for the mother went on to refer to two unreported decisions in which sureties had been set in the sums of $5,000 and $8,000 for travel to countries that were not signatories to the Hague Convention, including India. We have already mentioned the lack of utility in relying on decisions in other cases when seeking to attack (or support) discretionary judgments and have outlined the well accepted principles dealing with challenges to discretionary judgments. The fact that in dealing with a similar scenario another judicial officer came to a similar decision does not assist in disproving appellable error, just as reference to cases decided differently on similar facts does not establish the existence of such error.
Having stressed this crucial point again, it is important to record that at no stage did the Federal Magistrate find that $5,000 would be adequate to cover all of the costs the father might have to incur in securing the return of the child from India. On the contrary, her Honour recorded, at paragraph 59, that “the sum of $5000 is not a significant sum of money and possibly unlikely to meet all of the father’s costs if he is required to pursue any recovery options in India”. Her Honour had previously recorded, at paragraph 51(w), that $5,000 will provide the father with “some financial redress” in the event of failure by the mother to comply with the order.
Ultimately, her Honour found there were a number of relevant factors to be taken into account. Importantly, she recorded that it would be in the child’s best interests to be able to travel to India with her mother. In this regard she recorded that there would be “little point in making the bar so high that it precludes the mother from effectively being able to travel when I have determined that it is in [S’s] best interests that she be afforded that opportunity”. Her Honour also, in paragraph 51(y), properly said she had to take account of the fact that the father had adduced no evidence as to what level of surety would be appropriate.
It is apparent the Federal Magistrate went through a careful balancing exercise in determining the level of the surety. She set out plainly what we accept were the relevant factors and explained why she reached the decision she did. In our view, save potentially for the issue associated with the “offer” of $20,000, her Honour’s decision is unimpeachable.

The $20,000 “offer”

We turn finally to consider the submissions made by counsel for the father and the Independent Children’s Lawyer about her Honour’s failure to take up the mother’s “offer” to provide a surety of $20,000.
In order to assess whether there is merit in the argument it is necessary that we extract the relevant portions of the transcript touching on the submission. It will be noted that Mr Crisp appeared for the mother and Dr Sayers for the Independent Children’s Lawyer. (Counsel for the father was not involved in any of these interchanges.) We have bolded one portion of the transcript on which particular emphasis was placed in submissions. We have also bolded portions of the submissions of counsel for the Independent Children’s Lawyer in which doubt was expressed about the capacity of the mother to find $20,000.
MR CRISP: Yes, your Honour. Well, the mother’s proposal is that she provides a security deposit which seems to be on the basis of Lyon & Lyon [Line & Line] (1997) FLC 92-729, the authority, that those securities have been set anywhere from – on the authorities that I’ve got, from 5000 to 40,000. Of course, it depends on the means. She is legally aided. She is reliant on Centrelink. She is flexible. She is offering $5,000 in the proposed orders but she’s flexible on that. I have instructions that that could be increased to 20, which – she would have to do a runaround of all her extended family in India to get it but it is possible. The authorities that I have, have set securities of anywhere from five up to 40 but the two that I’d be putting to your Honour would be 5,000 and another case of fifteen - both to India.
…
MR SAYERS: The independent children’s lawyer’s submission is that the risk is there but it falls short of being significant risk and that’s a deliberate choice of words given the decision in O’Leary – falls short of significant – is in the nature of a manageable risk. The only criticism, so to speak, of the respondent’s suggestion, is the impost on the mother of finding something like the twenty odd thousand that is proposed as a possible surety. It – given the mother’s circumstances, it sounds quite a significant sum of money. If your Honour is of the view that (a) the mother can do that – can raise that money, and I’ve accepted the assurances of her counsel in that respect and (b) that that provides sufficient incentive, then that’s the end of the matter and there’ s no need further to go anywhere with the chain of reasoning.
But, if your Honour is either not confident that the 20,000 can be raised, given that up until today the figure postulated was $5000 and given the mother’s financial circumstances, then in my submission, it would be appropriate to think of the question of mirror orders as a kind of a belt and braces approach here…
…
MR SAYERS: It’s relevant to the exercise of your Honour’s discretion this way; that in the Full Court authority, the financial circumstances of the parties, and the measure of the impost of the surety that’s ordered, is a relevant factor. If the surety is too little, there is no incentive. If it’s too great, it actually risks preventing the mother from ever actually travelling if she can’t find the 20,000. So, this is, in a sense, a halfway house and unfortunately it is not one that can be put in place finally today. It would have to allow for a window of time for the mother to see if it’s possible. Because if it was ordered as a sine qua non; unless you can get mirror orders, you can’t travel, then the mother might be barred even if she could find $20,000…
In the ICLs submission, it’s not a significant risk here but it is a risk and if the mother had more money and wherewithal, one would simply accept the $20,000 as sufficient, but given the impost that it could pose to her and the fact that if she can’t raise it then she can’t travel, then the advantage of this is that the amount of a surety could be less – the advantage of mirror orders. So, it’s in a sense, a question that can be determined theoretically today and then practically just needs the mother to do the legwork.
HER HONOUR: I’m just wondering if the parties should be afforded some time. The mother should be afforded a – this matter was set down for three days.
MR SAYERS: Yes.
HER HONOUR: It’s not that I don’t have other things on during the day. I think I’ve got other trials but I’d obviously give this precedence. So, Mr Crisp, what’s the problem with your instructing solicitor making some inquiries because your client speaks whatever dialect of Indian that would be necessary to make some inquiries to see whether or not – how simple it is to get a court order because it may well save her having to go, cap in hand, to a variety of relatives to try and raise some money, if I minded that she should be afforded the opportunity but there needs to be some security. Obviously there would have to be some in place to provide a sufficient incentive for her to - - -
MR CRISP:   Your Honour, my client has made – I did have the discussion – picking up on what your Honour said earlier about the incentive for her to come back. That she – I actually did advise my client, prior to the luncheon break, exactly as your Honour had commented, and she understands that and that is an incentive. The difficulty I have with the mirror order is that we don’t have expert evidence about it. We would have to make inquiries. That could be done. However, in my submission, it’s a question of does she go, doesn’t she go. Mirror orders – seems to me that it could result in a prohibition against – no matter what sort of expert evidence is obtained, it’s still a matter of the unknown.
HER HONOUR:   No, I know that. But, what I’m just – it just seems to me that that’s such a sort of logical and sensible course that Mr Sayers is proposing. I appreciate that he’s put it on the basis that in his view – in his submission, there’s not a significant risk and that if I can manage that by an appropriate security then I don’t have to go to the next stage – don’t have to worry about mirror orders but I’m just saying that, in the course of his outlining what that meant, it may be in your client’s advantage. It would give the father some comfort because he’s got the benefit of a court order and because he’s saying – he doesn’t adduce any evidence, of course, to assist me in relation to the fact that he may not have standing but he says that he may not have standing. So, having an order will provide him with some comfort but it may also be a cheaper outcome for your client in the context of not having to put money – where does this money go? Does it sit in some registry?
MR CRISP: It’s lodged into the registry on trust.
HER HONOUR: All right. So, you’ve got $20,000 or 15,000 or whatever the sum is. Between fifteen and twenty - - -
MR CRISP: Well, it’s just a bond. It’s not a payment.
HER HONOUR: Isn’t it a payment?
MR CRISP: No, it’s just a bond. What the mother would do – her relatives – her extended family would all chip in together. They would go to a bank in India. They would place a bank guarantee in the bank, like a letter of credit, and that would be lodged, by a bank in Australia, with the registry.
HER HONOUR: But how do you call in the money, so to speak? Let’s assume worst case scenario. She went over there and didn’t return. How does the father get his hands on the money?
MR CRISP: Well, that’s outlined in the orders that I’m seeking, your Honour. I’ll just go to those orders. There is a machinery provision, if I can find it. Yes, it’s here.
The registrar to hold the sum of $5,000 on trust for the parties pending the safe return of the child but subject -
HER HONOUR: When you say 5,000 – yes, go ahead, sorry.
MR CRISP: Well, that’s the amount that I had in the orders but it’s twenty - - -
HER HONOUR: Yes.
MR CRISP:
… but subject to any further order of the court or the receipt of both parties is the disbursement of the said sum.
So that, in effect, the – if the child didn’t return, the money, as I understand it, is immediately paid over by the registrar on that time - - -
HER HONOUR: Yes, well, that’s my point precisely. Somebody has got to give the registrar money. Is that right?
MR CRISP: Well, it can either be – I understand it’s either a – it’s a bond to pay $5,000 or the twenty or whatever it might be - - -
HER HONOUR: How does that help the father?
MR CRISP:   On the – well the money’s paid over to him under that – the bank here guarantees the payment of it - - -
HER HONOUR: Right, but - - -
MR CRISP:   - - - against the letter of credit in India.
HER HONOUR: I see. All right. So, some letter of credit and then the bank guarantees the payment.
MR CRISP:   Correct.
…
HER HONOUR: Mr Crisp, it must be relevant, if I accept what Mr Sayers says because Mr Sayers says – he seems to be approaching this on a two tier basis. Firstly, he says that I’ve got to consider whether it’s a significant risk. In his view, it’s not a significant risk. I’ve then got to consider whether there’s sufficient incentive. If I’m satisfied that the five to $20,000 that your client is offering - - -
MR CRISP:   Correct.
HER HONOUR:   - - - is a sufficient incentive, then that’s the end of the matter.
MR CRISP: That’s what I say, your Honour.

In their submissions before us, counsel for the father and the Independent Children’s Lawyer placed particular emphasis on the statement made by counsel for the mother, “Well, that’s the amount that I had in the orders but it’s twenty - - -”. It was submitted that in saying this, counsel for the mother was foreshadowing that his client’s application was being amended to substitute the sum of $20,000 as the amount to be held pending the safe return of S.
Although we accept there was some ambiguity in what was being put to the Federal Magistrate, it cannot be said that counsel ever formally sought leave to amend the mother’s application. Hence it is the case, as her Honour found, that the mother’s proposal remained for payment of a surety of $5,000. Her Honour had not, however, overlooked the fact that other figures had been mentioned because she recorded, in paragraph 51(u) of her reasons, that “the figure of $15,000 to $20,000 as an upper limit was mentioned as a possibility”.
The fact that her Honour was entitled to treat any amount exceeding $5,000 as no more than a “possibility” can be seen by what counsel for the mother said almost immediately after he had uttered the words “Well, that’s the amount that I had in the orders but it’s twenty - - -”, namely:
Well, it can either be – I understand it’s either a – it’s a bond to pay $5,000 or the twenty or whatever it might be - - -
Importantly, there was also ambiguity as to whether counsel for the mother was proposing that a sum of $20,000 in cash be set aside to be held by the Registrar, or whether the proposal was for some form of “bank guarantee in the bank, like a letter of credit … that would be lodged, by a bank in Australia, with the registry”. Whatever counsel may have had in mind, her Honour would have been entitled to proceed on the basis that it was not necessarily being proposed that $20,000 in cash would be deposited with the Registrar – which was the form of the security that the father now suggests was offered.
It is important to observe also that counsel for the Independent Children’s Lawyer expressed reservations before her Honour as to whether the mother did, in fact, have the capacity to obtain $20,000. We have emphasised those parts of the submissions in our earlier citation from the transcript. Given those submissions we have some difficulty in seeing how it is appropriate now for counsel for the Independent Children’s Lawyer to submit that her Honour erred in failing to require the mother to provide a surety in that sum, given that the Independent Children’s Lawyer supported the child being able to travel to India. On the other hand, we recognise that counsel for the Independent Children’s Lawyer in the proceedings below linked his submissions concerning the amount of the surety to the obtaining of “mirror orders”, which her Honour ultimately refused to make.
Her Honour correctly observed (in paragraph 51(u)) that there was no evidence that would enable her to conclude that the mother’s relatives were “people of means”. She also correctly observed that it appeared that possibly the only way for the mother to raise the additional funds was by “taking the hat around” to a variety of relatives. Importantly, as we have already recorded, her Honour then went on immediately to say, “[t]here is little point in making the bar so high that it precludes the mother from effectively being able to travel when I have determined that it is in S’s interests that she be afforded that opportunity”.
We are not satisfied that counsel for the mother ever formally and unequivocally proposed to the Federal Magistrate that the mother could deposit $20,000 with the Registrar. Even if such an “offer” was made we do not consider that her Honour would have erred in determining that it was unnecessary for the mother to “take the hat around” to various relatives in India to secure her the opportunity to return to her homeland to visit her family. The gravamen of her Honour’s decision is clearly laid out in paragraph 51(v). She had concluded that it was in S’s interests for her to be able to travel to India and her Honour was determined not to put any obstacle in the way of that occurring, given her finding that there was not a significant risk of the child being retained in India.

“Mirror” orders

Counsel for the Independent Children’s Lawyer made a number of references in her submissions before us to the fact that there would be no “mirror orders” to assist in securing the return of S. By “mirror orders” we understand counsel to mean orders of a court in India, made prior to the child travelling overseas, requiring her to be returned to Australia at the end of the planned 30 day trips. The rationale of such orders is that in the event of a non-return, the father would then need only to enforce existing orders in India, rather than commence proceedings and wait for them to be determined.
We do not propose discussing these submissions in any detail. The father’s grounds of appeal make no express mention of this issue. The issue was not raised in the proceedings below until the Independent Children’s Lawyer made his submissions. Her Honour cogently explained in paragraphs 61 and 62 of her reasons why she did not propose to require “mirror” orders to be made. She was therefore aware that such orders would not be in place when S travelled to India and there is no reason to consider she did not take that fact into account in the exercise of her discretion.

The outcome and costs

We have determined that the Federal Magistrate gave appropriate weight to those considerations she found to be relevant. She did not take into account any irrelevant considerations. She made no errors in her findings of fact. The decision she made was not so plainly wrong as to be outside the range of reasonable discretion. We therefore propose to dismiss the appeal.
Both the mother and the father, as well as the Independent Children’s Lawyer, were legally aided. Counsel for the mother and the Independent Children’s Lawyer understood they were under an obligation to seek costs as a term of their grant of legal aid in the event the appeal was dismissed. No propositions were advanced in support of their applications for costs, save that it was implicit they relied on the fact that the father had been entirely unsuccessful in the event the appeal was dismissed.
Whilst we have found that the appeal should fail, we consider at least the proposition relating to the $20,000 “offer” was arguable. We also note that the father must have limited means since he qualified for Legal Aid. We consider the appropriate order is for there to be no order as to costs.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 29 April 2010