TOLBERT & EDISON
[2018] FCCA 3630
•11 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOLBERT & EDISON | [2018] FCCA 3630 |
| Catchwords: FAMILY LAW – Parenting – where final parenting orders made in 2010 – where order made for children to travel with consent of parties – where father makes Application to travel to the [country omitted] and/or [country omitted] or [country omitted] with the children – where the mother resists this Application – where the mother has concern father will travel to [country omitted] with children and not return – where orders made for children to travel with father to [country omitted]. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAB, 65Y, 69ZM, 69ZN, 69ZT |
| Cases cited: Adamson & Adamson [2014] FamCAFC 232; [2014] FLC 93-622; (2015) 51 FamLR 626 |
| Applicant: | MR TOLBERT |
| Respondent: | MS EDISON |
| File Number: | SYC 3327 of 2015 |
| Judgment of: | Judge Harper |
| Hearing dates: | 21, 22, 23 March 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 11 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Kennedy |
| Solicitors for the Applicant: | Turner Freeman Lawyers |
| Counsel for the Respondent: | Mr Longworth |
| Solicitors for the Respondent: | Legal Aid New South Wales |
ORDERS
Subject to Order 2:
(a)The father be permitted to travel with children to the [country omitted] during the period [date] 2018 and [date] 2019, on condition such travel takes place in the company of his partner Ms A.
(b)Within five (5) days of a request to do so by the other party, each party will complete and execute any document and do all acts and things necessary to apply for or renew passports for either or both of the children.
(c)The Father shall be liable for and pay the costs of any passport applications and photographs.
(d)The parties will each be solely responsible for the costs associated with any Visa application associated with their proposed travel.
(e)The children’s Passports be held initially by the Father and thereafter by the parent who has travelled most recently with the children.
(f)The parent holding the children’s passports will provide the passport to the parent intending to travel within five (5) days of a written request to do so and upon provision of the proposed travel itinerary.
(g)That the children, [X] born [date] 2004 and [Y] born [date] 2007, shall be removed from the Airport Watchlist and PACE Alert System between [date] 2018 and [date] 2019.
(h)The Court requests the assistance of the Australian Federal Police in the implementation of this Order.
The father shall provide security for the travel referred to in Order 1 as follows:
(a)On or before [date] 2018, the father shall pay into his solicitors’ trust account an amount of $20,000.00 as a bond for the return of himself and the children to Australia by [date] 2019;
(b)The father may demonstrate compliance with this order by providing either in hard copy or electronically a copy of any receipt for payment of the amount referred to in Order 2(a):
(i)to the wife; and
(ii)to the Australian Federal Police.
In the event there is default in compliance with Order 2, Order 1 is stayed.
The security referred to in Order 2 shall be released as follows:
(a)Upon the children’s return to Australia in accordance with Order 1 above, the amount of $20,000.00 shall be released to the father or at his direction.
(b)In the event the father fails to return to Australia in accordance with order 1, the amount of $20,000.00 shall be released to the mother or at her direction.
If any party seeks an order for costs, an appropriate application to the Court may be made within twenty-eight (28) days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.
THE COURT NOTES THAT:
Any application as to costs will be dealt with by way of written submissions, unless the parties request to be heard orally.
IT IS NOTED that publication of this judgment under the pseudonym Tolbert & Edison is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3327 of 2015
| MR TOLBERT |
Applicant
And
| MS EDISON |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter between the applicant father, Mr Tolbert (“the father”), and the respondent mother, Ms Edison (“the mother”) in relation to the children of the relationship, [X] (“[X]”) born on [date] 2004 and presently 13 years of age, and [Y] (“[Y]”) born [date] 2007 and presently 11 years of age (collectively referred to as “the children”).
Final parenting orders were made by Federal Magistrate Monahan (as he was then known) by consent on 26 October 2010 (“the 2010 orders”) under the Family Law Act1975 (“the Act”). These are the orders relevant to this judgment, but I note they were incorporated into orders made on 12 May 2011. I will refer to the 2010 orders throughout these reasons.
These proceedings have a complex history which is set out below. These reasons relate solely to the discrete issue of overseas travel. However, since 2015, there has a been a hearing concerning the principles in Rice & Asplund, numerous procedural hearings before several judges of this Court, an appeal by the mother which was withdrawn, several hearings concerning objections to subpoenas, an adjourned final hearing because the parties estimate of time increased from one to three days, and a three day final hearing followed by written submissions. The parties, particularly the mother, relied upon voluminous documentary material, much of which was ultimately not referred to, and extensive written submissions, which in the mother’s case ran to over 50 pages, requiring lengthy consideration. These factors combined with judicial illness have delayed delivery of judgment.
By his Amended Initiating Application filed 20 May 2016, the father sought variation of the 2010 orders to allow, in summary, the children to travel with either parent overseas and specifically, that he be permitted to travel with the children to the [country omitted] and [country omitted] or [country omitted] in 2017.
The mother, by her amended Response filed 15 April 2016, opposed the father’s Application and seeks that the father’s application be dismissed, or in the alternate, that the 2010 Orders be varied in part so to restrain either party, or their agents, from removing the children from the Commonwealth of Australia, regardless of consent of the parties. She also seeks the children’s names be maintained on the Australian Federal Police Family Law Watchlist (“the AFP Watchlist”).
For reasons explained later, by the time the Application was heard, travel in 2017 was no longer possible. Consequently, the father has made an application for permission to travel overseas generally with the children, or specifically to the [country omitted], with his Australia partner of 9 years, and the children, between [date] 2018 and [date] 2019. The mother resists this travel on the basis that she holds a genuine and reasonable fear that the father, if allowed to leave Australia with the children, will not return, because in truth he intends to remove the children to a non-Hague Convention country, in particular a [country omitted] country, that the father’s application is not made bona fide and he poses an unacceptable risk to the children.
Background
The relevant background facts in this matter are as follows:
a)The mother was born [date] 1979 and is currently 39 years of age.
b)The father was born in Australia on [date] 1979 and is presently also 39 years of age.
c)The parties commenced a relationship in [date] 2000 and married [date] 2004.
d)On [date] 2004, [X] was born.
e)In March 2005, the parties separated initially but reconciled for a short period before separating again, this time on a final basis, in late 2006 and prior to the birth of [Y] on [date] 2007.
Procedural History
Following the parties separation in 2005, the mother filed an Initiating Application with this Court on 10 May 2005 (which became Exhibit 1in these proceedings), and as amended 14 July 2005 (which became Exhibit 2 in these proceedings), seeking final parenting orders with respect to [X]. Subsequently, on 21 December 2005, the parties reached agreement and final parenting orders in relation to [X] were made by consent (“the 2005 orders”).
Following the parties separating for a second time and after the birth of [Y], on [date] 2009 the mother again filed an Initiating Application with this Court in relation to both children.
The parties reached agreement regarding arrangements for the children and on 26 October 2010, fresh final parenting orders were made by consent. The 2010 orders provided, inter alia, that the 2005 orders with respect to [X] be discharged. Of the 2010 Orders, orders 18, 19, 20 & 21 related to travel and provided as follows:
18. Unless otherwise agreed between the parties in writing, the Mother and Father, by themselves, their servants or their agents are restrained from removing or attempting to remove the children [X] born [date] 2004 (female) and [Y] born [date] 2007 (male) from the Commonwealth of Australia.
19. The Marshal of the Federal Magistrates Court of Australia and all Officers of the Australian Federal Police and of the Police Forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these Orders and to take all necessary steps to prohibit either party from removing or attempting to remove the children from the said Commonwealth of Australia.
20. Until further Order, the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s name on the Watch List also known as the PACE Alert System, at all points of arrival and departure into and out of the Commonwealth of Australia.
21. The Australian Federal Police maintain an Airport Watch List of the said children on all flights leaving an International Airport in all States and Territories of the Commonwealth of Australia.
On 26 May 2015, the father filed an Initiating Application, in summary, seeking Orders 18, 19, 20 & 21 of the 2010 Orders be discharged and in their place, new orders be made to allow the children to travel with either parent overseas with certain notice and information being provided to the other parent, provided that such travel did not interfere with the time the children would otherwise spend with the other parent, unless this was consented to. The father also sought specific orders that he be permitted to travel with the children to [country omitted] from [date] 2015 to [date] 2016 and sought orders in relation to the children’s passports.
The mother filed her Response on 2 September 2015. By her Response, the mother also sought that Orders 18, 19, 20 & 21 of the 2010 Orders be discharged, however, unlike the father, sought that in their place new orders be inserted maintaining the children’s names on the AFP Watchlist and restraining the parties, or their agents, from removing the children outside the Commonwealth of Australia, notwithstanding consent of either party.
Thereafter, the matter came before His Honour Judge Monahan in a duty list on 3 September 2015.
On 29 April 2016, Judge Monahan listed the matter for a discrete hearing on 22 June 2016 to consider the threshold question of whether the father’s application should be able to progress or be dismissed for the reasons expressed by the Full Court of the Family Court in In the Marriage of Rice & Asplund [1978] FamCA 84; (1978) 6 Fam LR 570; (1979) FLC 90–725 (“Rice & Asplund”).
On 15 April 2016, the mother filed an amended Response. By her amended Response, in addition to what she sought originally in her Response filed 2 September 2015 as detailed above, the mother also sought the dismissal of the father’s Application and costs.
On 20 May 2016, the father filed an Amended Initiating Application. By his amended Initiating Application, the father sought to travel with the children to the [country omitted] during the period [date] 2017 and [date] 2017, or in the alternative, to [country omitted] or [country omitted] during the period [date] 2017 and [date] 2017 and to the [country omitted] for a period of not greater than three weeks at a later date in 2017 as nominated by him, instead of travelling solely to [country omitted] as originally sought.
The matter proceeded to a threshold hearing with respect to the Rice & Asplund issue on 22 June 2016 and Judge Monahan handed down judgment on 2 December 2016. By Order 1 of this judgment, Judge Monahan ordered that the father’s Amended Initiating Application be dismissed, subject to Order 2 which was in the following terms:
Paragraphs 5 and 6 of the Application be listed for a discrete issues hearing on 16 December 2016 at 11:00 am (“the hearing”).
Paragraphs 5 and 6 of the father’s Application were in the following terms:
5. In the alternative to Order 4, the Father be permitted to travel with children to [country omitted] or [country omitted] during the period [date] 2017 and [date] 2017 and to the [country omitted] for a period of not greater than three weeks at a later date in 2017 as nominated by the Father.
6. Within seven (7) days of a request to do so by the other party, each party will complete and execute any document and do all acts and things necessary to apply for or renew passports for either or both of the children.
Clearly his Honour did not dismiss the entirety of the father’s Application. He dismissed the Application in so far as it sought a discharge of the 2010 Orders and a substitution of general orders allowing travel overseas by both parties. He was satisfied that it was appropriate for paragraphs 5 & 6, which sought permission for specific travel, be listed for a discrete issues hearing. His reasons were set out at paragraphs [73]-[78] of the 2016 Judgment:
73. I am satisfied that it was appropriate to consider this matter as a discrete threshold issue and I am further satisfied that the father has failed to establish on the balance of probabilities that there has been a significant change in circumstances to warrant a reconsideration of the travel restrictions. Moreover, I find that the re-opening of the parenting aspect of this matter may, in all likelihood, be further damaging to the children.
74. That said, I am also satisfied that the intention of the relevant final Orders was not to prevent any overseas travel from ever occurring. Indeed, as I have found, the relevant final Orders facilitate the possibility of overseas travel by mutual agreement. In the absence of such agreement, a Court determination and order would be required. Obviously, if specific travel were approved, passports would need to be obtained for the children.
…
76. I will allow the parties a short period of time to have some discussions through their respective lawyers to see if any agreement can be reached, firstly, for the children to obtain passports and, secondly, for those passports to be used by the children to go on a short holiday with the father during part of the forthcoming school holidays to the [country omitted], or to [country omitted] or [country omitted] in lieu. Failing agreement, the merits of such travel can be considered by the Court subject to the Court having capacity to do so. The matter can be relisted to 16 December 2016 at 11.00am for that purpose.
The mother subsequently lodged a Notice of Appeal with respect to the orders made 2 December 2016 and as a result, on 16 December 2016, the discrete issues hearing was stayed pending determination of the appeal.
The mother subsequently withdrew her appeal.
On 16 May 2017, the matter was transferred to my docket.
The matter first came before me on 16 June 2017 and orders were made listing the matter for Final Hearing on 6 October 2017.
On 6 October 2017, the matter came before me but did not proceed to Final Hearing as it was agreed the Hearing would exceed one day. A Hearing with respect to subpoenas occurred instead.
On 13 October 2017, the matter yet again came before me for a Subpoena Hearing. Orders were also made on this occasion listing the matter for Final Hearing on 21 March 2018 for an estimate of three days.
Final Hearing took place on 21, 22 & 23 March 2018 and both parties were legally represented. At Final Hearing, both parties made proposals which are set out below.
I point out here that, in the father’s original application, paragraphs 5 and 6 sought permission for travel to [country omitted] or the [country omitted] on dates in 2017. The way in which the matter has been conducted means that by the time the matter was heard by me, travel in 2017 was no longer possible. Accordingly, the father sought revised orders for travel for dates in 2019, as set out in Exhibit A. I return to consider these below.
As the evidence was not concluded by the end of the last day of Final Hearing, orders were made for the parties to provide to Chambers a collaboratively prepared Tender Bundle and for the Applicant and Respondent to file and serve written submissions.
On 15 May 2018, the father provided to Chambers written submissions.
On 15 June 2018, the mother provided to Chambers written submissions.
On 6 July 2018, the father provided to Chambers written submissions in reply to the mother’s written submissions.
On 13 July 2018, the parties contacted Chambers and sought to tender Yahoo Messenger communications between the parties which subsequently became Exhibit 13 as referred to below.
Proposals
The father tendered a minute of proposed order sought which became Exhibit A. His proposal is in the following terms:
1. Each parent is at liberty to take the children overseas provided that;
1.1 Such travel does not interfere with the time the children are to spend with the other parent, unless the other parent consents in writing; and
1.2 The travelling parent notifies the other parent in writing not less than four (4) weeks prior to the intended departure of departure and return dates, a detailed itinerary of all flights and other transportation, and details of all accommodation where the children are staying while overseas, including contact telephone numbers.
Or in the alternate to order 1 above:
1. The father be permitted to travel with children to the [country omitted] during the period [date] 2018 and [date] 2019;
2. In the alternative to Order 4, the father be permitted to travel with the children to[country omitted]or[country omitted]during the period[date]2017 and[date]2017 and to the[country omitted]for a period of not greater than three weeks at a later date in 2017 as nominated by the Father.3. Within seven (7) days of a request to do so by the other party, each party will complete and execute any document and do all acts and things necessary to apply for or renew passports for either or both of the children.
4. The Father shall be liable for and pay the costs of any passport applications and photographs.
5. The parties will each be solely responsible for the costs associated with any Visa application associated with their proposed travel.
6. The children’s Passports be held initially by the Mother and thereafter by the parent who has travelled most recently with the children.
7. The parent holding the children’s passports will provide the passport to the parent intending to travel within 7 days of a written request to do so and upon provision of the proposed travel itinerary.
8. The names of the children shall be removed from the Airport Watchlist and PACE Alert System.
9. The Court requests the assistance of the Australian Federal Police in the implementation of Order 9 above.
10. The Mother pay the Father’s costs of and incidental to this Application.
Notation
A. The father intends, following his return from holidaying to the [country omitted] in accordance with this orders to bring an application for further future travel internationally with the travel [sic].
As set out in her amended Response filed 15 April 2018, the mother sought the following orders:
1. That the Father’s application filed 26 May 2015 be dismissed.
2. That the Father pay to Legal Aid NSW the Mother’s legal costs of and incidental to this Application.
3. In the alternative, that the Orders made on 26 October 2010 and incorporated into Orders made on 12 May 2011 be varied as set out in Orders 4 and 5 below.
4. Orders numbered 18, 19, 20 and 21 of the Orders made on 26 October 2010 be discharged.
5. Until further other each party, MR TOLBERT born [date] 1979 and MS EDISON born [date] 1979, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children ([X] born [date] 2004 and [Y] born [date] 2007) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the children each attain the age of 18 years.
Issues in dispute
There are two main issues to be determined in this judgment between the parties are, as follows:
a)The effect of the 2016 Judgment regarding travel;
b)Should the father be permitted to travel with children to the [country omitted] during the period [date] 2018 and [date] 2019, together with ancillary orders such as whether the children should be issued with passports?
Evidence
The father relied on the following documents:
a)Case outline;
b)His amended Initiating Application filed 20 May 2016;
c)His Affidavit affirmed and filed 24 August 2017;
d)His Affidavit affirmed and filed 22 September 2017;
e)Affidavit of Ms A sworn and filed 10 June 2016; and
f)Affidavit of Ms B affirmed and filed 20 May 2016.
The father, Ms A and Ms B were cross-examined.
The mother relied on the following documents:
a)Her amended Response filed 15 April 2016;
b)Her Affidavit affirmed and filed 14 September 2017;
c)Her Affidavit affirmed and filed 3 October 2017; and
d)Affidavit of Ms C sworn and filed 15 April 2016.
The mother also sought leave to rely upon the Affidavit of Mr D affirmed 7 March 2018 and filed 8 March 2018. Leave was granted and the Affidavit was read, subject to objection.
The mother, Ms Edison and Mr D were cross-examined.
Counsel for the father raised relevance objections to some of the mother’s Affidavit material. I admitted such material subject to relevance. In my view, this material satisfied the test of relevance in s.55 of the Evidence Act 1995 (Cth), although much of it was only slightly relevant. I discuss the evidence in more detail in the course of these reasons.
The following documents were received into evidence:
Exhibit Label Document Tendered by A Proposed minute of order sought by the father Father B Father’s birth certificate Father 1 Application filed by the mother on 10 May 2005 in proceedings [omitted] Mother 2 Amended Application filed by the mother on 14 July 2005 in proceedings [omitted] Mother 3 Email correspondence between the parties during the period 8/10/2011 – 3/11/2011 Mother 4 Smarttraveller.gov.au print-out in relation to [country omitted] Mother 5 US Embassy in [country omitted] print-out in relation to the [country omitted] Legal System Mother 6 Screenshots of messenger conversations between the parties on various dates Mother 7 Father’s Initiating Application filed 26 May 2015 in proceedings SYC3327/2015 Mother 8 Father’s Amended Initiating Application filed 20 May 2016 in proceedings SYC3327/2015 Mother 9 Mother’s Affidavit filed 10 May 2005 in proceedings [omitted] Mother 10 Mother’s Affidavit affirmed 1 September 2015 and filed on 2 September 2015 in proceedings SYC3327/2015 Mother 11 Portion of transcript from proceedings Ms B v [Company], Mr F v [Company] & Mr F v [Company] Mother 12 Joint tender of documents by the parties, from tender bundle produced by the mother Joint 13 Yahoo messenger communications between the parties NOTING that they were tendered after the trial, by consent, on 13.7.18 Mother
The mother produced two volumes of documents. During the course of the hearing, I made clear that I would have regard only to those parts of the two volumes to which I was taken by one or other of the parties. At the close of the hearing the parties prepared a joint schedule of those pages from the two volumes which each party tendered. The schedule is Annexure “A” to this judgment. The documents referred to in Annexure “A” became Exhibit 12. Where pages are referred to in the course of these reasons, the reference “T” will be used for ease of reference.
Expert evidence
There was no expert evidence relied upon by either party.
The Children
As noted above, [X] is currently 13 years of age and [Y] is currently 11 years of age.
Both children attend School 1, with [X] in Year 8 and [Y] in Year 6.
The father’s evidence
My impression of the father under cross-examination was that he gave his evidence honestly. He impressed as an intelligent person. His memory was inaccurate in places, but he was often asked to recall events up to 17 years ago, and recall the contents of documents which were created many years ago. He had a marked tendency to carefully parse the wording of each question. He was at times argumentative with the questioner. He appeared defensive and easily antagonised at times.
The mother made a detailed and concerted attack on the father’s evidence. She submitted that he lacked credibility, gave demonstrably false answers, was aggressive, contentious, non-responsive, unreliable, and constantly dissembled. The mother submitted his manner and style of giving evidence would lead the Court to consider making a positive finding that the father was not only unreliable but untruthful. The particular factual question upon which the mother focussed was a series of events in 2002 involving the father’s sister Ms G. I discuss the evidence relating to these events in further detail later in these reasons.
I reject the mother’s submission concerning credit findings for two reasons. First, I adopt with respect the dicta of Kent J in Carlson & Fluvium [2012] FamCA 32 at [165] to [169], to the effect that civil courts usually refrain from specific adverse credit findings against litigants “if disposition of the case can legitimately be achieved otherwise”. Where litigants will have to co-parent for many years “adverse credit …carry the inherent risk that…they may be embraced as vindication for the pursuit of further conflict in the future.” I also follow the caution of the Full Court of the Family Court of Australia (“the Full Court”) in Adamson & Adamson [2014] FamCAFC 232; [2014] FLC 93-622; (2015) 51 FamLR 626 at [90]: “…in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based…” Secondly, I have carefully considered the mother’s submissions regarding the truthfulness of the father. I do not accept them. As detailed later in these reasons, the mother’s submissions concerning the truthfulness of the father were largely unsupported by the evidence in any event.
Overall I formed the view that the father’s argumentative responses were the result of the accumulated frustration and exasperation with his involvement in Court processes. Indeed, in cross-examination he described the process as “absurd”, after extensive questioning about his time in [country omitted] in 2002. He also expressed frustration with the prospect of having to make repeated Applications to Court year after year for travel permissions. The mother made reference to this and argued that it showed the father was an opportunist by including a general permission for travel when Judge Monahan had specifically refused this in the 2016 Judgment. I do not accept this submission. Rather I accept the father is exasperated with continual Court processes without apparent progress.
I accept the father’s memory was imperfect, and he had an irascible demeanour at times in the witness box, but I found him to be a credible witness. I generally accept his evidence.
Ms B also gave evidence and was cross-examined. The mother again made an attack on her credibility as a witness. There were inaccuracies in her recollection of events surrounding the Ms G episode. However, these inaccuracies are to be expected in relation to events so long ago and do not generally impugn her evidence. I found her to be a credible witness.
The father’s current partner, Ms A, was also a credible witness. The mother submitted to the contrary, on the basis she was aligned with the father. However, of itself this is not enough to impugn her evidence. She gave the impression of being a measured witness.
The mother’s evidence
The mother impressed me as a witness who was reasonably frank. The mother submitted that movement of the father’s sister Ms G to [country omitted] between 2001 and 2006 was “a key issue surrounding these proceedings” (Written Submissions, paragraph 72). I formed the clear view, for reasons that will appear later in these reasons, that her perceptions of the father and his motivations for seeking travel overseas were distorted by her own perceptions of events that took place in 2002 involving Ms G.
For example, it was clear on the evidence, and the mother conceded in cross-examination, that since the 2010 Orders the parties had co-parented well, despite some occasions of terse and abusive messaging at times, negotiated some changes to parenting arrangements by consent, there had been no contraventions, no Apprehended Violence Orders, no involvement by police or government agencies, that the children were doing well physically, socially and in their education. She agreed the children loved their father and enjoyed spending time with him. It was an agreed fact that the children spend approximately 87 nights each year with the father.
However, when it came to overseas travel in 2017 or 2018 none of these factors seemed to matter to the mother as much as factually contested events which took place some 16 years previously.
Furthermore, the mother’s own actions are hard to reconcile with her evidence about the Ms G episode. In cross-examination, she maintained her assertions that she thought what the father had done to Ms G in 2002 was “wrong” and “abhorrent”. Yet, despite saying she held this view since 2002, she married the father in 2004, had two children with him, and after a period of separation between [dates] 2006, she reconciled with the father between [dates] 2006.
Overall, I treat the mother’s evidence with some caution.
The maternal grandmother, Ms C, gave evidence in the mother’s case. It was clear she did not like or trust the father. I formed the view that she was very closely aligned with her daughter, but in addition her evidence was influenced by her strong negative view of the father. For example, in cross-examination, Ms C made reference to the father “hassling about passports” when there was no similar mention in paragraph 10 of her affidavit. Ms C responded “There should be”. The father submitted this evidence was “opportunistic”. Bearing in mind her evidence related to an overseas travel application, failure to mention in an affidavit that the travelling parent “hassled” about passports is a surprising omission. I treat her evidence with caution.
Mr D also gave evidence in the mother’s case. He gave evidence which in places contradicted the father’s evidence. I discuss the evidence of Mr D in more detail later in these reasons. Some of his evidence I found had little weight, particularly concerning allegations that he witnessed the father being violent towards his sisters in 2001-2. In other important respects, I formed the view that the evidence of Mr D did not differ in material respects from the father.
Intending no disrespect, for the sake of clarity, I will refer to witnesses, other than the parties and Mr D, by their first names throughout this judgment.
The Mother’s First Position – 2016 Judgment
The mother argued that the 2016 judgment decided the father’s Application should not progress and should be dismissed, but then progressed other parts of the Application. The mother argues that the issue determined by the 2016 judgment was whether the criteria for the application of Rice & Asplund were satisfied, and since Judge Monahan decided that they were, the father’s Application for travel was dismissed. The mother argued this created a “Gordian Knot”, because the dismissal left no room for “for any further application or proceedings”. This argument has little merit.
The 2016 judgment dealt with the father’s amended Initiating Application filed 20 May 2016. Paragraphs 2 and 3 were the substantive orders sought. Paragraph 2 of that application sought a discharge of Orders 18, 19, 20 and 21 of the 2010 Orders. Paragraph 3 sought an order in the nature of a general permission for overseas travel. Paragraphs 7 to 13 dealt with ancillary matters such as the issue of passports, the Airport Watchlist and costs. It may be accepted that the order for dismissal covered these parts of the application.
His Honour may have dismissed those parts of the father’s application, but in so doing, by Order 2, he specifically preserved Paragraphs 5 and 6 for a further hearing as discrete issues. Order 1 was made subject to Order 2. In other words, paragraphs 5 and 6 were clearly not dismissed, but intended for a further hearing, while the dismissal in Order 1 did not extend to the issues raised in paragraphs 5 and 6. Moreover, it is clear from paragraph [74] of His Honour’s reasons that the question of passports may need to be revisited.
The mother also argued that the dismissal left Orders 18 to 21 of the 2010 Orders intact. That much is correct. In particular, the mother argued that Order 18 remained in force and is clear in its meaning. It objectively was intended to prevent any travel at all outside Australia unless the parties reached agreement. If agreement was not reached, travel could not happen. Such a construction, if correct, would mean that either parent could prevent overseas travel for the children until they reached 18 years, for any reason at all, no matter how capricious or unreasonable.
Judge Monahan took a different view of the proper construction of Order 18. The father relied upon the construction of Order 18 articulated at paragraph [74] of his Honour’s reasons, also set out above, where His Honour specifically held “the intention of the relevant final Orders was not to prevent any overseas travel from ever occurring…In the absence of such agreement, a Court determination and order would be required”.
His Honour went on to make detailed observations relevant to overseas travel for the benefit of the parties at [78]-[84]:
[78] Children, like adults, have a right of freedom of movement. This right is subject to such movement being in the child’s best interest. By implication, children have a right to a passport in order to facilitate overseas travel. Children, however, generally lack the capacity to apply for a passport until they are an adult. Consequently, the child’s parents or guardian would make that application and would, in many cases, organise the relevant travel. Under s.11 of the Australian Passports Act 2005, the consent of a parent with parental responsibility for a child is required for a passport to issue for that child unless Ministerial permission is obtained or a Court has permitted the child to travel overseas. In this case I note that the parties consented to a final order that they have equal shared parental responsibility for the children.
[79] Once obtained, passports should be retained in safe keeping. In the event of a dispute between parents over the custody of the children’s passports, the Court may direct one party to hold the children’s passports which can then be released to the other party to facilitate specific travel and thereafter returned. In appropriate circumstances the Court may direct that the passports be held by the Court for safe keeping.
[80] If the Court is required to resolve a dispute between parties in relation to requested travel, then the Court would have to be satisfied that the proposed travel was, or was not, in the best interests of the children. This would require the Court considering the relevant statutory provisions in light of the available evidence and submissions. In doing so the Court is assisted by relevant case law.
[81] In Kuebler and Kuebler (1978) FLC 90-434, the Full Court of the Family Court (Ashgun SJ, Gun and Yewell JJ), set out the following factors which should be considered in applications to temporarily remove a child or children from Australia:
· the length of the proposed stay out of the jurisdiction;
· the bona fides of the application;
· the effect on the child of any depravation of access;
· any threats to the welfare of the child in the circumstances of the proposed environment; and
· the degree of satisfaction in which the Court based its assessment of the parties that are a promise of a return to the jurisdiction would be honoured.
[82] In the relatively more recent case of Line & Line (1996) 21 Fam LR 259; (1997) FLC 92-729, the Full Court (Murray, Lindenmeyer, and Kay JJ) confirmed that fixing an appropriate level of security for a child’s return was a matter of discretion for the trial judge. In the exercise of that discretion, the Court should have regard to the following matters:
· the two-fold purpose of the security, namely (i) to provide a sum which will realistically entice the person, removing the child to return; and (ii) to provide 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 child if required;
· the degree of risk that the departing parent would choose not to return;
· whether the country to which the parent will travel with the child is a signatory to the Convention on the Civil Aspects of International Child Abduction 1980 (the Hague Convention); and
· the financial circumstances of each of the parties, and the relative hardship imposed on the departing parent by fixing security at a particular level as compared with the hardship to a non-departing parent, if security were fixed at a lower level. Hardship to the child flowing from these factors will also be relevant.
[83] The person proposing to leave the jurisdiction may be ordered to make a payment into a solicitor’s trust account, or to provide other security for his or her return as a way of addressing any risks of non-return.
[84] Although the guidance from these cases remains useful, they should now be read subject to the amendments made to the Act in 2006 and 2011 (that provide more detailed criteria as to what would be in the children’s best interests). In other words, they have to be read in light of more recent cases, such as Goode & Goode (2006) FLC 93-286.
As the father pointed out, although the mother filed an appeal in respect of the 2016 Judgment, it was not pressed. Accordingly, no appeal was made from the judicial interpretation of Order 18 in paragraph [74] of the 2016 Judgment. However, the existence of the appeal lead to a stay of the 2016 Judgment, which in turn meant that the hearing listed on 16 December 2016 on the discrete issues of the specific travel sought in paragraphs 5 and 6 of the father’s Amended Initiating Application could not take place. As a result the original travel dates sought in those paragraphs became otiose. Alternative paragraphs 1 and 2 in the Exhibit A reflect a necessary amendment to paragraphs 5 and 6 preserved for hearing, while paragraphs 3 to 10 and the Notation in Exhibit A would be appropriate ancillary orders.
In my view, the interpretation of Order 18 given by Judge Monahan, who made the order, was, with respect, both correct and binding upon the parties. It clearly formed the basis for making Order 2 in the 2010 Judgment. Although this was not argued by the father, it probably created an issue estoppel because it constituted “an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment”: Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28; (2015) 256 CLR 507 per French CJ, Bell, Gageler and Keane JJ at 517-518, [22]. However, I express no concluded view on this.
The order for dismissal, Order 1, based upon the principles in Rice & Asplund, does not affect in my view the binding nature of His Honour’s construction of Order 18, which clearly formed the basis for Order 2, to which Order 1 was subject.
The dismissal does mean that the proposal for general permission to travel in paragraphs 1.1 and 1.2 of Exhibit A are not open to the father. The question of a change to the 2010 Orders for a general permission for both parties for overseas travel was dealt with in the 2016 Judgment and dismissed.
Therefore, in the absence of agreement, as here, a Court determination is required regarding specific travel. I reject the mother’s first position.
The Mother’s Second Position
The mother’s second position was that the father’s application to permit travel should be dismissed because his application lacked bona fides and travel outside Australia presented an unacceptable risk to the children because the father was unlikely to return with the children.
There was no dispute that the father’s travel application fell to be determined under Part VII of the Act and the best interests of the children was the paramount consideration, and the statutory pathway should be followed.
Relevant Law
The Approach in Goode & Goode
The mother made reference to the approach set forth in Goode & Goode [2006] FamCA 1346. I have had regard to that well known decision. However, the Application before me concerns the narrow issue of international travel. I will come to the relevant authorities concerning travel, which were adverted to by Judge Monahan in the 2016 Judgment, later in these reasons.
Legislative framework
Section 65D(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and s.65DAB of the Act.[1]
[1] There is no relevant parenting plan so s 65DAB of the Act does not apply.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility for the child. However, the 2010 Orders contained an order for equal shared parental responsibility. Consequently, allocation of parental responsibility, is not a live question for the purposes of this judgment.
Best interests of the children
The best interests of a child are the paramount consideration (s.60CA of the Act).
The best interests of a child are to be determined by an examination of the considerations set out in section 60CC of the Act, weighed and applied within the ambit of the objects and their underlying principles set out in section 60B of the Act.
In considering the role to be played by these objects and principles in the determination of parenting orders I follow what the Full Court of the Family Court of Australia said in Maldera & Orbel [2014] FamCAFC 135; 52 FamLR 24 at [74]-[75], particularly:
a)In its current form, s.60B of the Act does no more than provide context, indicate the legislative intention or purpose of the Part and otherwise operates as an aid to construction of the Part and the Act; and
b)The current s.60B of the Act cannot be used to change the ordinary and clear meaning of s.60CC of the Act nor where the s.60CC deliberations do not enable the court to determine whether or not a parenting order is in a child’s best interests, will s.60B be decisive.
Primary considerations
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s.60CC(2) of the Act which are:
a)The benefit to the child of having a meaningful relationship with both of the child's parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying these considerations the Court is to give greater weight to the consideration in paragraph 2(b) (see s.60CC(2A) of the Act).
Section 60CC(2)(a), “meaningful relationship”
As to s.60CC(2)(a), the Full Court of the Family Court of Australia in Sigley & Evor [2011] FamCAFC 22; (2011) 44 Fam LR 239 endorsed a number of earlier judicial statements of interpretation:
a)A “meaningful relationship” as one which is “important, significant and valuable to the child”: (citing Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 and McCall & Clark [2009] FamCAFC 92; [2009] FLC 93-405;
b)A “prospective approach” is the preferred approach to s.60CC(2)(a) requiring the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”: McCall (supra) at [118]-[119];
c)Depending on the factual circumstances “the present relationship approach” may be relevant, requiring the Court the examine the evidence “of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made”; however, it is not the preferred approach since s.60CC(3)(b) of the Act requires a Court to explore existing relationships between a child and the child’s parents and other persons, and application of the present relationship approach would limit a Court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial: McCall (supra) at [118]-[119];
d)The legislation aspires to promote a meaningful relationship, not an optimal relationship, (M & S (2007) FamCA 1408; [2007] FLC 93-313 per Dessau J; Godfrey & Sanders (2007) FamCA 102 per Kay J and Champness & Hanson [2009] FamCAFC 96; [2009] FLC 93-407 per the Full Court); and
e)A “meaningful relationship” is a legal construct, not a psychological one, and it is for the Court, not an expert, to determine what constitutes a meaningful relationship: at [136] following Champness (supra) at [191].
The “meaningful relationship” consideration in s.60CC(2)(a) of the Act supports the position that as much time as possible with both parents is in the children’s best interests.
The mother submitted that “nothing in the evidence would suggest there is anything about the father’s desire to take the children overseas, which would affect the meaningfulness of the children’s relationship with him” and “the ‘meaningfulness’ of the children’s relationship with the father could not rationally hinge on a trip to [country omitted] or [country omitted]”. The former submission is plainly wrong and the latter was not part of the father’s case.
There was no dispute that the children and the father have a meaningful relationship. They spend time with him on alternate weekends from Friday to Sunday with extension to Mondays on Public Holidays in accordance with the 2010 Orders. It was not suggested by the father that the meaningfulness of his relationship “hinged” upon the proposed overseas trip.
The father’s case was that overseas travel would benefit the children. This is not a radical proposition. Overseas travel with exposure to different countries and cultures, even [country omitted], can be beneficial to children, particularly when they are old enough to understand the experience, as these children are. Moreover, the experience of travel with a parent in a foreign country may well have the effect of making their relationship deeper and more mature, that is, more meaningful. This accords with a prospective approach to the question of a meaningful relationship.
The mother’s submissions themselves conceded that the father’s holidays with the children in Australia, to the Region P in 2015/16 and Region Q in 2017 were enriching for the children.
She then submitted that there was no reason why the father could not holiday elsewhere in Australia with the children. No doubt the father could do so. However, that is beside the point. The enriching potential of overseas travel is a relevant consideration because it may enhance the relationship between the children and the travelling parent, irrespective of whether a similar outcome could be achieved by travel in Australia.
I give weight to this consideration.
Section 60CC(2)(b), “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
The mother concentrated her argument on the second primary consideration, contending it was the only primary consideration to which the Court would turn its mind.
The mother did not tie her argument to any specific words in s.60CC(2)(b). Rather, she relied upon the well-known principles concerning overseas travel enunciated in Kuebler & Kuebler [1978] FamCA 26; (1978) FLC 90-434 at 72,205 and Line & Line (1997) FLC 92-729. In summary, the mother impugned the bona fides of the father and submitted that there was a real and reasonable concern that if the father was allowed to travel overseas with the children, he will not return them. This line of argument was made in the context of s.60CC(2)(b).
The decision in Kuebler & Kuebler (supra) (at 72,205 ) raises the following practical criteria to be considered by the Court in relation to overseas travel:
a)The length of the proposed stay out of the jurisdiction;
b)The bona fides of the application;
c)The effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
d)Any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas; and
e)The degree of satisfaction which the Court has that a promise made by a party to return to Australia will in fact be honoured.
Fundamentally, the Court must also make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line (supra), the Full Court of the Family Court of Australia indicated that there are a range of circumstances which the Court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
a)The existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
b)The existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child-related issues; and
c)The existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; the existence of business interests; and the existence of familial and personal ties.
The Full Court in Line & Line (supra) also made clear the Court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the Court is directed to consider the following factors:
a)In fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary;
b)The degree of risk that the departing parent will not return to Australia;
c)Whether the country of travel is a signatory to the Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and the likelihood of deviation to a non-convention country; and
d)The financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.
The Full Court of the Family Court of Australia’s decision in Thomason & Malhotra [2010] FamCAFC 85 affirmed the continuing applicability of Line & Line (supra) and Kuebler & Kuebler (supra).
To recap, the father’s Application is for permissions to travel to the [country omitted] with the children for a period of three weeks between [date] 2018 and [date] 2019. The proposed travel is for a short period, during school holidays, to a Hague Convention country, where there are no specific threats to the welfare of the children beyond the ordinary vagaries of life. The father has no ties to the [country omitted]. The mother’s contention was that he may use the [country omitted] as a staging post to take the children to a non-Hague Convention country, probably in the [country omitted].
Bona Fide Application and Degree of Risk Father would not return.
The mother submitted the case was not a simple one about travel. Rather it was a case about risk.
The mother emphasised that s.65Y(1) of the Act contains a statutory prohibition on travel, except as permitted in s.65Y(2), where a parenting order is in force. Those exceptions are consent in writing of each person in whose favour the order was made, or travel in accordance with a court order. There was no dispute that the parties entered into parenting orders by consent in 2005, 2009, 2010 and 2011. In each set of orders the parties agreed to restrictions on travel, and an order placing the children on the AFP Watchlist.
In resisting travel, the mother focussed on an alleged likelihood the father would not return with the children and his bona fides in making the application. The mother submitted that evidence in support of this concern lay in the father’s past behaviour and his past statements. The mother made extensive submissions in writing. Intending no disrespect, it is not possible or necessary to address the detail of each submission. I will consider the central elements of her arguments.
2000-2002: Ms G, Violence
A prominent aspect of this part of the mother’s case involved events between 2000 and 2002 concerning the father’s sister Ms G, who was then about 13 years old (“Ms G episode”). The mother submitted the facts surrounding this episode were central to findings about the father’s credibility and bona fides.
At the relevant time Ms G was exhibiting behavioural problems, including mixing with a “bad crowd”, possibly using drugs, playing truant from school and regularly running away from home. At this time Ms G’s mother, Ms B was a single mother raising 5 children, including Ms G.
The Department of Family and Community Services (“the Department”) became involved and had several meetings with Ms G’s mother and the father.
The father concedes the following factual matters regarding the Ms G episode:
The Father concedes the following (“the agreed matters”) in relation to Ms G’s residence in [country omitted] between 2002 and 2006:
(a) In 2001 he was aware that Ms G was truanting school, was running away from home regularly and that his mother was significantly concerned about the people that Ms G was spending time with and the activities she was engaging in and Ms G’s safety and wellbeing. Ms G was 13 years old at the time;
(b) In 2001 and 2002 the father was aware that his mother and Ms G were talking to Family & Community Services about how to manage Ms G. By this time the father's mother, Ms B, was a single mother of 5 children. She and Mr F, Ms G’s father had separated a few years prior and Mr F was living at the time in [country omitted]. One of the proposals that Ms B raised in relation to Ms G’s care was to get her away from the bad crowd with which she was associating and send her on a holiday to [country omitted] and then [country omitted] with the possibility that Ms G may subsequently reside with for a period of time with her Paternal Grandmother, Ms H, in [country omitted]. Ms G at this time had lived in Australia for just over 3 years. She spoke fluent [language omitted]. Prior to this she had lived consistently in the [country omitted] and most recently in [country omitted] and had enjoyed a close relationship with her paternal grandmother. The father was 22 years old at the time decisions were being made about Ms G’s care. He had no parental responsibility for Ms G. He denies having any influence in the decision his parents made about her care;
(c) In [date] 2002 Ms G travelled with her eldest half brother Mr I to [country omitted]. The father agrees that he met Mr I and Ms G in [country omitted] and they holidayed together for a week. Ms G and the father then travelled to [country omitted]. The paternal grandfather, Mr F arrived in [country omitted] some days later. The father agrees that Ms G was not aware of the possibility that she may reside with her paternal grandmother in [country omitted] to complete her high school education. The father understands that the final decision was only made by Ms B, Mr F and Ms G’s grandmother once Ms G had arrived in [country omitted].
(d) It is agreed that Ms G lived in [country omitted] between 2002 and 2006. She completed her secondary education in [country omitted] and lived in an affluent wealthy suburb of [country omitted]. Ms G relocated to Australia in 2006 with the same passport she departed from Australia. Ms B collected Ms G from the airport and Ms G lived with Ms B for some time following her return to Australia.
(e) Ms G was paid by [Company] to appear on a [omitted] program that aired on [date] 2014. As a result of that program the father’s parents sued [Company] for defamation. The matter was heard in the Supreme Court of New South Wales in [date] 2017 over some five weeks. Mr F was sucessful [sic] in the proceedings at first instance [sic]. Ms B has lodged an Appeal which is pending
(f) The father gave evidence in the Supreme Court proceedings; however, he was not a party to the proceedings.
The tenor of the mother’s evidence attempted to put a more sinister complexion on the Ms G episode. She gave evidence that the trip was orchestrated by the father, who pressured Ms B into a collusive arrangement whereby Ms G would be told by Mr D that he had won a holiday in [country omitted] and she should join him. According to the mother, the real plan was to lure Ms G to travel to [country omitted] from whence she would be taken to [country omitted] and left with her paternal grandmother, Ms H. Thus Ms G was “tricked” into going. The mother gave evidence of remarks by the father during this time indicating a strongly chauvinistic view of women and strong sympathy with attitudes about the rights of men over women. According to the mother’s evidence, the father admitted to beating Ms G so hard in an [country omitted] hotel room, that her uncle thought he would kill her and Ms G told her she was beaten repeatedly while in [country omitted], but she eventually got to the border with [country omitted] and returned to Australia in 2006.
I observe at this point that the mother submitted that the evidence of Mr D was important and if accepted where it contradicted the father, the Court “must” find that the father was untruthful. I do not accept that submission. I find, for reasons given below, that the evidence of Mr D concerning violence was of little weight. The mother submitted that the father “was emphatic in cross examination that in relation to each element in which his evidence was in contest with the evidence of Mr D, Mr D was lying.” That submission is overstated. It is true the father in cross-examination asserted Mr D was motivated by malice or lying in relation to evidence about his alleged violence towards Ms G and her sister. In relation to the Ms G episode, he was asked only about the conversation in paragraph 26 of Mr D Affidavit affirmed 7 March 2018. In particular, the mother submitted that if the evidence of Mr D was accepted, then the Court must find the father was untruthful on the issues that he was involved in the plan to take Ms G out of Australia and the plan was to deposit Ms G with her grandmother in [country omitted] for 2 years. However, the father conceded those matters in his Case Outline. He did not put them in issue. I do not accept these arguments of the mother.
The mother also put to the father in cross-examination that he caused Ms G to be sent away, not because of bad influences on her but because his physical abuse of Ms G had brought about unwelcome scrutiny from the Department. The father denied this. The mother did not pursue this allegation in final submissions. In any event, I accept the evidence of Ms B that she instigated the involvement of the Department.
Ms G did not give evidence in the mother’s case.
The mother argued that the Ms G episode demonstrated the children would be subject to unacceptable risk if the father was permitted to travel overseas with them.
The authorities make clear that a Court will not make orders placing a child in the care of a parent if to do so would expose the child to an unacceptable risk of abuse (M v M [1988] HCA 68; (1988) 166 CLR 69). The “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm. (In the Marriage of A [1998] FamCA 25; [1998] FLC 92-800). It requires an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable; the court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to the ordinary civil standard: Johnson & Page [2007] FamCA 1235; (2007) FLC 93-344 at [68].
Application of the Rules of Evidence
It is necessary at this point to address the argument of the father that, although this was a parenting matter, an order should be made pursuant to s.69ZT(3) of the Act that parts of the Evidence Act, 1995 (Cth) should apply to evidence of the mother concerning the Ms G episode. The father also seeks to exclude evidence concerning this episode pursuant to s.135 of the Evidence Act (supra) as unfairly prejudicial.
Part VII, Division 12A of the Act applies to proceedings wholly or partly under Part VII: s.69ZM(1) and (2). Such proceedings are “child related proceedings”: s.69ZM(4). S.69ZN sets out five principles for the conducting child-related proceedings. These include consideration of the “impact that the conduct of the proceedings may have on the child”, the active direction, control and management of the conduct of the proceedings, and that “proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.”
Consistently with these principles, s.69ZT of Division 12A of the Act excludes a number of provisions of the Evidence Act1995 (Cth), from application to such proceedings. S.69ZT(1)(a) excludes application of Divisions 3, 4 and 5 of Part 2.1 of the Evidence Act (supra), “other than section 26, 30, 36, and 41”. S.69ZT(1)(b) excludes application of Parts 2.2 and 2.3, while S.69ZT(1)(c) excludes application of Parts 3.2 to 3.8 of the Evidence Act (supra). S.69ZT does not remove the requirement that evidence, to be admissible, must relevant: s.55 of the Evidence Act1995 (Cth).
The father seeks an order pursuant to s.69ZT(3) in relation to two issues:
a)Allegations (apart from the conceded matters) of any wrong doing by the father in relation to the travel and retention of Ms G in [country omitted]; and
b)Allegations of violence by the father against Ms G or other family members prior to and including 2001 and 2002.
As to the first issue, it is not entirely clear what allegations are referred to. However, taking the evidence of the mother and Mr D together, the allegation of wrongdoing appears to be that the father was the one who really controlled the family, was a domineering personality and organised a conspiracy, in which Ms B and Mr D were willing participants, to take Ms G to [country omitted], to mislead her about going to [country omitted] and about how long she would remain there.
The evidence in support of that allegation comes from the Affidavits of the mother and Mr D. Their evidence is comprised of observations of the father or statements he is said to have made to the deponent or in their presence, which could be construed as admissions about perpetrating violence. This evidence would likely be admissible even if the provisions of the Evidence Act were ordered to apply.
I point out here that the father denied most of these allegations. As already pointed out, the father has conceded he knew Ms G was not aware she may reside with her paternal grandmother to complete her high school education in [country omitted]. Otherwise, he stated that in 2000-2002 he had no parental responsibility for Ms G, and his mother, Ms B, was the responsible parent. Ms B also denied the father made the decisions about Ms G. She denied the father “was the real parent”. She gave evidence that she made decisions about Ms G, including the decision to place her with her paternal grandmother in [country omitted]. In evidence affirmed in an Affidavit dated 21 October 2010 (TB302-304) Ms B stated she agreed with Ms G’s father, who appears to have lived in [country omitted], that Ms G would be safer living with family in [country omitted] specifically her paternal grandmother. She maintained that she was the person who instigated the involvement of the Department.
As to the second issue, the only Affidavit evidence which bears upon allegations of violent behaviour by the father in the period 2000 to 2002 comes from Mr D where he stated he observed the father hit his sisters Ms G and Ms J a number of times (paragraphs 13 and 14). The mother gives no evidence of similar observations.
It is convenient here to express my views about the evidence of Mr D concerning the alleged father’s role in “raising” Ms G and perpetrating violence. He stated “My mother allowed Mr Tolbert to raise and discipline my brothers and sisters” (paragraph 11). This was a conclusionary statement. It was admitted subject to relevance. I accept it has some relevance. Although admissible as evidence (Britt & Britt [2017] FamCAFC 27; (2017) FLC ¶93-764; 56 Fam LR 526 at [40]), I give it little weight. No detail was given in support for such a generalised statement. Mr D also gave evidence that he saw the father “being physically violent to my sisters Ms G and Ms J”. He conceded he did not recall dates or times. Overall, the evidence of Mr D about violence was of limited value, given the absence of detail.
There is also some documentary evidence. As already noted, the Department of Family and Community Services became involved and had several meetings with Ms G’s mother and the father. The Departmental records indicate that Ms G alleged her mother abused her physically and emotionally because she was disgracing the family and the father, being her brother, physically assaulted her on occasion; ultimately it appears the Department was satisfied with undertakings by the father and the agreement of all parties to attend family therapy (TB 536, 541, 552, 559). The Department notes record that on 27 September 2001 both Ms B and the father agreed that physical punishment was used on Ms G (TB 537). The Department took no further action.
The father submitted that the circumstances are “exceptional” within s.69ZT(3) because they are not “regularly, or routinely, or normally encountered”: Khalil & Tahir-Ahmadi [2012] FamCAFC 68 at [95]. The Full Court in Khalil made clear that the decision whether circumstances are exceptional is discretionary. The father submitted the circumstances were exceptional because the mother is alleging the father, if allowed to travel, is proposing to commit a criminal offence by kidnapping the children, because the issues would impact significantly upon the Court’s determination, and no prejudice would flow to the mother by applying the rules of evidence.
Despite some initial attraction, I do not accept these submissions. The circumstances surrounding the Ms G episode have some unusual features, but that could be said of most cases of any factual complexity. In travel applications, the allegation that the travelling parent lacks bona fides, or will not return, is routinely made. On the issue of family violence, it can be said such issues are not unusual or exceptional in parenting matters. I am not persuaded that any order pursuant to s.69ZT(3) applying the rules of evidence should be made.
The father also submitted the evidence of the events surrounding the Ms G episode should be excluded pursuant to s.135 of the Evidence Act (supra). Section.135 is in Part 3.11, which is unaffected by s.69ZT of the Act. Consequently, the father requires no order pursuant to s.69ZT(3) applying s.135 because its operation is not excluded by s.69ZT(1).
S.135 is in the following terms:
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
The father submitted that the evidence surrounding the Ms G episode was unfairly prejudicial in the relevant sense, misleading or confusing or would cause an undue waste of time. In relation to the Affidavit evidence of the mother and Mr D, I do not accept those arguments. Both deponents were available for cross-examination, and were cross-examined. The father referred to Ainsworth v Burden [2005] NSWCA 174, which confirmed the test of “unfairly prejudicial” is whether the evidence will be used by the tribunal of fact in some unfair way. I was not and am not satisfied such a risk existed in relation to the specified evidence. Nor did I form the view that their evidence was “misleading or confusing” because it presented only part of the relevant picture, thereby distorting the true situation: Hughes Aircraft Systems International v Airservices Australia (No 3) [1997] FCA 558; (1997) 76 FCR 151. As Campbell J said in Re GHI [2005] NSWSC 466 at [8] as a judge sitting alone, I propose to trust myself not to be confused or mislead (see also Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 35) [2014] VSC 59 at [60]). It is not so much as question of the evidence being confusing as a question of its weight. The weight of the evidence of both witnesses was affected by the absence of Ms G. Although their evidence ultimately did not advance the mother’s case according to my findings and conclusions below, I was not satisfied it would cause “undue” waste of time such that it should be excluded.
The documentary evidence from the Department is in a different category. It was comprised of material recording allegations by Ms G and records of interviews with Ms B and the father. As already discussed, Ms G did not give evidence. She could not be cross-examined. However, I am not satisfied the inability to cross-examine Ms G meant the probative value of the evidence was “substantially outweighed” by any of the dangers enumerated in s.135 (a), (b) or (c), for the reasons given in the previous paragraph.
Overall, I was not and am not satisfied any order should be made excluding evidence pursuant to s.135.
However, the weight to be attributed to evidence is a separate question: s.69ZT(2).
Jones v Dunkel
The father also submitted that the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 should be applied such that an inference should be drawn adverse to the mother’s case. The rule in question is that the unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence, may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case.
The “unexplained failure” here is the failure of the mother to call Ms G. The inference potentially available is that the evidence of Ms G would not have assisted the mother’s case, not that her evidence would have been positively adverse: Heydon J, in a separate judgment in ASIC v Hellicar (2012) 247 CLR 345 at [232].
It must also be born in mind that the scope for the application of the rule in Jones v Dunkel in parenting proceedings has been described as “limited”. In Murdock & Madden [2011] FamCAFC 219 the Full Court said the following about the application of the rule in Jones v Dunkel in parenting proceedings:
[68]… we think, necessary to point out that, even in circumstances where the pre-conditions to the application of the rule are made out, a court is not compelled to draw an adverse inference. Nor can it be presumed “that the uncalled evidence would have been damaging” (LexisNexis Butterworths, Cross on Evidence, vol 1 (at Service 129) [1215], citing HML v R (2008) 235 CLR 334; Brandi v Mingot (1976) 12 ALR 551 at 559-560).
[69] But, there are pre-conditions to the application of the rule. No inference should be drawn unless and until “enough has been proved to warrant a reasonable and just conclusion” against the person not giving evidence. Moreover, it is only where “the nature of the case is such as to admit of explanation or contradiction” that the inference can sought to be drawn. (Jones v Dunkel per Windeyer J at 321 citing R v Burdett [1814-23] All ER 80).
[70] The satisfaction of each of those preconditions might be seen to be more difficult in a court without pleadings and in parenting cases where the issues are more forensically diffuse. Moreover, Division 12A of the Act and, in particular for example, the duties contained in s 69ZX might (and arguably should) more readily admit of more circumspection on the part of practitioners and parties as to the evidence that should properly be called in a parenting case. In any event, here it is by no means clear what evidence it is said the grandfather had to meet in the sense explained in Jones v Dunkel. There was evidence from which his Honour could have reached conclusions about relevant attitudes and the responsibilities of parenthood exhibited by the grandfather. The desirability of there being evidence before the Court does not found an inference arising from the application of the rule; it is the forensic need to answer, explain or contradict that founds its potential application.
[71] As we have explained, the scope for the operation of the rule in Jones v Dunkel in parenting proceedings appears limited, and recourse to it potentially unhelpful.
There is scope for the operation of the rule in this case. I do not think recourse to it here is unhelpful. The evidence discussed above concerning the Ms G episode, and the prominence the mother gave it in her case, were sufficient in my view to found its application. This created “the forensic need to answer, explain or contradict.”
In my view, the mother could reasonably have been expected to call Ms G as a witness. The mother gave evidence of attempts to contact Ms G (Affidavit sworn 3 October 2017). She was in contact with Ms G during 2017 via the Facebook Messenger program. The mother raised with her the possibility of obtaining an Affidavit. However, Ms G ceased responding to the mother in September 2017. The mother stated Messenger was her only means of contacting Ms G: “I have no other way of contacting Ms G, I don’t have an address or phone number for her.” (paragraph 13). However, Mr D gave evidence (paragraph 31 of his affidavit) that he usually sees Ms G every 2-3 months. He gave evidence in the mother’s case. No explanation was given as to why Mr D could not have provided contact details to the mother, or facilitated contact. As the father submitted, the mother was able to have contact with Ms G when she gave evidence in proceedings in the Supreme Court in 2017. I do not consider a satisfactory explanation for the failure to call Ms G has been provided by the mother.
I infer that evidence of Ms G would not have assisted the mother’s case.
The mother also invited the Court to draw a number of Jones v Dunkel inferences in relation to the father’s case. Surprisingly, this included the submission that an adverse inference should be drawn from the father’s failure to call Ms G. I reject this submission. My reasons for drawing an adverse inference from the mother’s failure to call Ms G, logically precludes any such inference in relation to the father’s case.
The mother also submitted that an adverse inference should be drawn from the father’s failure to call his own father, Mr F, who affirmed an affidavit in these proceedings on 20 May 2016. The mother tendered paragraphs 4-11 of this affidavit as part of her case (TH 305-307). The mother argued that Mr Tolbert senior “might have cast light” on a number of contentious issues, including the Ms G episode. In light of the father’s concessions about the Ms G episode, it is not clear why the failure to rely upon the evidence of Mr Tolbert senior is relevantly unexplained. The fact that a witness may have been able to shed light on an issue does not necessarily require the drawing of the inference. Being able to “shed light” is not the same as meeting a “need to answer, explain or contradict”. The absence of Ms G was an obvious case, in light of the emphasis the mother placed on the events surrounding her. I decline to draw any inference from the failure of the father to call his own father as a witness.
The mother made a similar submission in relation to the paternal grandmother, Ms H (Written Submissions, [179]]). The submission was based upon the fact that Ms H affirmed an Affidavit in the proceedings. However, the father did not read the Affidavit nor did the mother tender it. It was not before me as evidence. I am not satisfied there has been a relevant “unexplained” failure to call Ms H. It is not clear what her evidence may have added, especially in light of the father’s concessions regarding Ms G. Again I decline to draw any inference in relation to her absence as a witness in the father’s case.
Conclusions on the Ms G Episode.
The mother bears the onus of establishing on the balance of probabilities that her version of the Ms G episode is correct. In summary, the elements of the Ms G episode which remain in dispute after taking account of the father’s concessions, were only that the father controlled the family with his domineering personality and organised the taking of Ms G to [country omitted]. I have carefully considered the evidence. However, I am unable to find that the father tricked Ms G into travelling overseas in 2002 or that he mislead her about her length of any stay in [country omitted]. The mother’s perception that the father “controlled” the family at age 22 is implausible. The role of Ms B as Ms G’s mother, and Ms G’s father, as responsible parents cannot be ignored. The characterisation of the episode by the mother, many years after the events in question and in the forensic context of resisting a travel application, I treat with caution. The evidence of Mr D, although at odds with that of the father in places, does not differ so markedly that it is necessary to reject one or the other, as the mother submitted, particularly in light of the concessions of the father detailed above at paragraph [105]. I am not satisfied that the mother has discharged her onus.
In respect of the allegations of violence perpetrated by the father, although the observations of Mr D were not contextualised, the Department’s documents record allegations by Ms G of violence, and record that both Ms B and the father made admissions that physical punishment was used. The father denied the correctness of these entries, and denied ever being physically abusive to Ms G. His memory may be inaccurate in this regard. However, on the available evidence I am unable to make any finding about allegations of the father inflicting physical abuse on Ms G or her sister in the period 2000-2002.
However, even if I am wrong, and it be held that the father did trick Ms G in 2002 and even if the father was violent towards her and her sister in 2001-2002, I am not satisfied these conclusions would go the necessary distance to impugn the father’s Application to travel in 2018-19 with his own children.
The events of 2000-2002 happened when the father was a much younger man, in his early twenties. They related to his sister, who was clearly exhibiting behavioural problems, and not his own children. Despite the assertions of the mother to the contrary, I accept it is more likely than not that the plans to send Ms G to her paternal grandmother in [country omitted] were driven by Ms G’s mother, who was probably doing her best as a single parent at the time with a rebellious teenage daughter. She took the step of involving the Department. The father conceded Ms G spoke fluent [language omitted] and was already integrated into the father’s extended family, including being close to the paternal grandmother with whom she stayed, and had only been in Australia for about 3 years in 2002. She had lived for extended periods in the [country omitted], including [country omitted]. In those circumstances, in the face of behavioural problems as a teenager in Australia, placing Ms G with a paternal grandparent in [country omitted] in 2002, whom she knew, could be understood as a reasonable choice.
The children the subject of these proceedings are entirely different to Ms G in background and circumstances: they were born in Australia, they are the father’s children, they do not speak [language omitted], they have been raised in a [religion omitted] tradition, and have little contact with the father’s extended family. Furthermore, the events of 2002 took place in the context of a family dynamic that must have changed in 16 years and at a time when [country omitted] and other parts of the [country omitted] were still reasonably stable and free of war, unlike the present. As already pointed out, the father now has been in a secure relationship for some 9 years with an Australian partner. The mother also accepted, and relied upon the fact, that the father had entered into consequent sets of court orders between 2005 and 2011 which contained prohibitions on overseas travel in order to provide the mother with a level of comfort.
Moreover, while possible physical abuse is concerning, there was limited evidence of the context of the alleged chastisement, Ms G gave no evidence about it, and the evidence discloses the Department was satisfied with undertakings from Ms B and the father, with no further action. With respect to the mother’s submissions, in light of the long history and good parenting by the father of his own children, conceded by the mother and detailed already, it is difficult to see how the evidence of the intercession of the Department with Ms G in 2001 bears at all on the father’s application for overseas travel in 2018.
The differences in circumstance between 2002 and the present are so marked that the mother’s reliance on the Ms G episode, and any disciplinary violence by the father at the time, hardly advances her case.
I observe here that in the course of the hearing the submission was made by the mother that among matters that “loomed large” in the proceedings was the allegation that “the father was involved in Ms G’s removal from the country to a regime where she stayed for five years, and underwent horrific things”. That allegation, formulated in those terms, was not pursued in final submissions. The reference to a “regime” was not explained. I take account of the fact that the mother gave evidence that Ms G told her she had been beaten in [country omitted]. However, in the absence of any evidence from Ms G, or other supporting material, I give this evidence little weight. There was certainly no credible evidence before me that Ms G underwent “horrific things” in [country omitted]. This exaggerated form of allegation seemed to motivate much of the cross-examination of the father and the manner in which the mother’s case was conducted.
As part of her attack on the father’s bona fides, the mother also subjected the father’s evidence about travel to [country omitted] to minute dissection in submissions. For example, the mother focussed on the father’s evidence in his Affidavit sworn 22 September 2017 (paragraph 6) that he did not travel to [country omitted] with Ms G. As the mother pointed out in an earlier Affidavit sworn 21 October 2010 (TB216-7) the father stated he did travel to [country omitted] and stayed a month to ensure Ms G was settled. In cross-examination, the father stated the evidence from the 2010 affidavit was a drafting error and that he did not stay a month in [country omitted]. However, his immigration departure card dated [date] 2002 (TB739) also nominated [country omitted] as the country in which he would spend most time. In cross-examination the father said at the time he was not sure where he would spend most of his time, but gave no explanation for nominating [country omitted]. The ultimate point of these submissions appeared to be that the Court should find the father had the intention to take Ms G to [country omitted] in 2002 and did so, and because he gave evidence of not going to [country omitted] in his Affidavit sworn 22 September 2017, the Court should therefore find he was an unreliable and untruthful witness. The mother then argued the Court would take the further step of finding that, as a result, there were serious doubts about the father’s bona fides in his present travel Application.
I do not accept that submission. Although the mother argued repeatedly that evidence from 2002 remained relevant, the passage of time cannot be ignored. It may be accepted that the father’s evidence about the time he spent in [country omitted] was unsatisfactory in some respects. I accept it is likely he went there with Ms G. He has made factual concessions about this, detailed above. But I have already accepted the father’s memory was imperfect, and the events in question took place 16 years ago. I do not accept the father was deliberately untruthful. The mother did not explain how, objectively, imperfections in the father’s evidence about events in 2002 sustained a conclusion that he was not bona fide in his travel application, first brought in 2016 and heard in 2018, with his own children, especially bearing mind the matters referred to in paragraphs [142] and [143] above.
International web of family members.
The father gave evidence that he had no ties to any country outside Australia, and did not keep contact with his relatives overseas. He acknowledged he had extended family on his father’s side in [countries omitted], but had no close ties with any of them (paragraph 25 of affidavit affirmed 24 August 2017).
The mother also subjected this evidence to close scrutiny. She submitted that in four affidavits, 26 May 2015 (TB324-358), 10 June 2016 (TB439-487), and in these proceedings 24 August 2017 and 22 September 2017 the father gave evidence about ties to other places outside Australia, and contact with extended family. The mother made a great deal of small variations in the modes of expression, such as “no real ties” in the Affidavit of 26 May 2015 to “no ties” in the Affidavit of 10 June 2016.
The mother also argued that the father’s claims in this regard were undermined by his failure to disclose that he had sponsored an uncle, Mr K, when that uncle came to Australia on a six week visit (TB 708-15). The mother pointed out that, according to answers to interrogatories administered to Ms B in defamation proceedings in the Supreme Court of NSW between Ms B and [Company], Ms G spent time with this uncle while in [country omitted] (TB 747). The sponsorship included supporting the uncle for living costs and other expenses during his stay. This sponsorship was not mentioned in any Affidavit sworn by the father, including his 26 May 2015 affidavit which was sworn only some 5 weeks after the father signed the Sponsorship Application. It was put to the father that this demonstrated a significant connection with a family member overseas. The father said this was “absurd”.
The mother submitted that the father’s failure to disclose his association with an uncle was another reason to doubt his bona fides and the Court should conclude that it was a reasonable hypothesis that there existed members of the father’s cultural family, spread around the world, upon whom he could call for support to take in a child.
These submissions are not convincing. When his Affidavits are read fairly and objectively, I am satisfied that the father has been broadly consistent in all the Affidavits about absence of overseas ties and lack of contact with extended family. In my view, sponsorship, without more, does not demonstrate a “significant connection” with the uncle. The mother asks the evidence to support ultimate conclusions which it cannot bear. In truth, she asks the Court to infer from a six-week sponsorship of an uncle in Australia, the existence of a web of relations around the world who would participate in an international child abduction and take in a child as a favour to the father. I do not draw this inference, since it is not justified on the evidence. I accept the father’s evidence in this regard, especially when the matters in paragraphs [55] and [142] and [143] are born in mind.
Communications.
The mother also relies upon message exchanges between the parties in 2007, 2008 and 2009, found in Annexures F, G, H & I to her Affidavit sworn 14 September 2017. The mother again analysed these messages in painstaking detail, to support the submission that the “threat” that the children might be removed from the country has been “ever present”. (See Written Submissions, paragraphs 143, 144).
For example, in the message exchange on 23 November 2007 (Annexure “F”) the mother points to the father’s words “You’re pushing all the right buttons…Remember what I said to you in the hospital Ms Edison when [Y] was borne??? Think about it, because I’l [sic] thinking about going ahead with it more and more. You can laugh buit [sic] I’ll have the last laugh I promise.” The mother responded by saying “What…when you threatened to kidnap them?” The father responded “I always win” then “I never said that”. The mother then messaged “You told me when I told you they were [omitted]….that you would take them…” The father’s response does not appear on the annexure.
This message exchange portrays two parents scoring points off each other. The mother had called the father a “liar” and said he had “no idea” and “You have to go to mediation” and “I’ll fix some things I’m not happy with either” before he said “You’re pushing all the right buttons.” It is not clear the father made any threat to remove the children from Australia. He denied a threat to kidnap the children. The father contended the genesis of the conversation lay in his desire for equal time, hence the reference to mediation and “I’ll fix some things I’m not happy with either” by the wife. The mother denied this in cross-examination and submitted that the question of equal time appears nowhere in the father’s evidence. However, it is an available inference on the face of Annexure “F” and when the entire exchange is read, it is tolerably clear that the parties were messaging about parenting arrangements. The message on its face gives the strong impression that the parties were seeking to needle each other.
The other annexures relied upon by the mother give much of the same impression. Annexure G contains an exchange which seems to have arisen because the mother believed the father had formed a new romantic attachment, and asked how he would feel if she formed a new relationship, the father responded he would be furious if he was not a [religion omitted] and the mother would “lose [X]”. When the mother said “no court would give you [X] [sic]” to which the father responded “Who said anything about Court?” to which the mother replied “ha!...yeah right Mr Tolbert…thought you said your work and life is here…lol”.
The father submitted that when viewed in its entirety, this exchange shows the parties again provoking each other, and the mother not taking the father seriously in his confrontational messages. I accept that submission.
Annexure “H” contained a particularly abusive exchange in, during which the mother messaged “your hilarious” and “your so full of it” in response the an obscure statement by the father “You think you’re all ok but soon you will get the shock of your life” and later the mother messaged “your [sic] always full of threats…your[sic] like a raging dog that’s all bark and no bite”. Again I accept the mother does not appear to take the father seriously in this unpleasant exchange.
Annexure “I” contained another testy exchange in which the father wanted to know who his children were exposed to in the mother’s house, since she had repartnered. He threatened not to return [X] to the mother until the mother gave him information about her partner. The father finished by saying “[X] doesn’t come home Sunday until I know what the hell is going on. We’ll see how far I’m willing to take this…You won’t find us.” The father’s tone does not reflect well on him. But again, when viewed in context, the words “You won’t find us” are best understood, not as a threat to remove [X] from Australia, but an exaggerated claim to hide [X] born of frustration and a desire to know something about the mother’s new partner.
The mother also gave evidence that in a telephone conversation on 8 May 2015 (Affidavit 14 September 2017, paragraph 35) in which the father asked [X] to tell the mother: “Tell her I’m going to take you over to [country omitted].” The husband called this a joke. It was sarcastic and in poor taste no doubt. But it could hardly be taken as a statement of real intention. It is implausible the father would tell the child to pass on such a message to the mother if he truly had a plan to remove either child permanently from Australia.
Overall, I am not satisfied the evidence of communications shows there has been an ever present threat by the father to remove the children from Australia. Rather, the father has used oblique allusions to taking or withholding the children as a way of goading the mother during tense conversations over a number of years. The fractious and, at times, abusive messages, upon which the mother placed so much reliance, took place, as the father said in cross-examination, at a time when there was a lot of tension between the parties. I am satisfied that, while she may have found them provocative and aggravating, the mother did not take them very seriously.
Genuine and Reasonable Fear?
The mother submitted that the Court would find that she genuinely and reasonably holds the fear that the father “will visit upon his children the same fate that befell Ms G” by which she presumably means being taken to [country omitted] against their will to live with a relative.
The mother contended she has held such a fear consistently at all times, including in relation to the present Application.
The mother may genuinely have held such a fear at one time. It is odd that despite knowing about the Ms G episode, and apparently finding it “abhorrent”, as already pointed out, after the Ms G episode the mother married the father in a [religion omitted] ceremony, had two children with him, separated from, then reconciled with him.
However, there is evidence that the expressed her concerns in 2005 to a psychologist (TB 696), and when the father proposed travel to [country omitted] on [date] 2011 (Annexure “B” to father’s Affidavit affirmed 24 August 2017), the mother responded by email on the same day saying “You know my feelings about [the children] getting passports and leaving the country with you. Hence why our court orders have ALWAYS had the border watch on them.” (TB 357).
In support of her genuine fear argument the mother pointed to the fact that the father in Affidavits in 2009 and 2010 gave evidence that he agreed to the children being placed on the AFP Watchlist in order to give the mother a level of comfort, thus acknowledging her concerns were genuine (TB 68-9, 207, 212). However, in cross-examination, the father made clear that by the hearing he no longer believed the mother’s fears were genuine.
Indeed, the mother’s view seems to have changed after receiving legal advice in November 2011. In a further email on 22 November 2011 she says “All I can do is tell you the advice I was given”, indicating she sought and received advice about the proposed overseas travel to [country omitted], and then says “I request it be the end of 2014. I feel 6 is too young for [Y] to be overseas without me. It’s a big thing for a young child.” (Annexure “B” to father’s affidavit affirmed 24 August 2017), thereby indicating she had softened her resistance to travel and may agree to it at a later date.
The evidence shows the father acquiesced in this request and waited until the end of 2013 to ask the mother to arrange passports for the children. The father spoke to the mother about overseas travel in a conversation in late 2013 in which he asked the mother to make a joint passport application for the children. According to the father (paragraph 15(c) of his 24 August 2017 Affidavit), the mother agreed to “do my bit” to enable passports to be obtained. The mother denied saying that, but gave evidence that she responded “I will think about it” (paragraph 49 of her 14 September 2017 Affidavit). Thus even on her version of the conversation she did not rule out travel on the basis of any fears related to the Ms G episode. The father emailed the mother again about various proposed changes to the Court orders including travel to [country omitted] on [date] 2015 and his solicitors wrote to her about the same question on 19 May 2015. The mother never responded to these communications.
This evidence is not consistent with the mother maintaining a resolute genuine concern about overseas travel beyond 2014. Rather, the evidence shows the mother made representations which could be, and were, reasonably understood by the father as indicating she would give serious consideration to agreeing to overseas travel at the end of 2014. There is no explanation given as to why she could not articulate her stated fears again in 2015 in answer to any of the communications she received about travel to [country omitted]. If she genuinely maintained her stated fears about such travel, she nonetheless encouraged the father to believe travel may happen. Thus, although the father may have made concessions to the mother’s fears in agreeing to orders prohibiting travel or holding off an applying for passports up to 2014, he appears to have reasonably formed the view that the mother may have let go of her fears, until she wanted to obstruct his travel with the children. These considerations weigh against a conclusion that the mother held a genuine fear, as alleged, after November 2014.
However, whether or not any fear was genuinely held, I do not accept the mother’s stated fear is reasonable. In addition to the factors already set out in paragraph [48] above, the mother made no attempt to explain where in [country omitted], a country ravaged by war and ruination after 2002, the father would go, or why he would go there, why his partner, Australian and a [religion omitted] would go with him, and if she did, how she would assimilate into any [country omitted] community. The mother gave no plausible suggestion of why the father would leave a prosperous and stable nation like Australia, where he was born, has lived all his adult life, has close family, including mother and siblings, controls real estate and holds well-paid employment, in exchange for a war torn and unstable country in the [country omitted]. The only rationale for such action by the father which the mother proffered was the father’s desire to hurt her: paragraph 62 of her 14 September 2017 affidavit. In light of the considerations set out in paragraphs [55] and [142], [143] above, such a motivation is unconvincing.
Ties to Australia
The father gave evidence, which was unchallenged, that he was born in Australia, and lived here all his adult life. He is an Australian citizen. His parents are Australian citizens. He has siblings in Australia. He gave evidence that he considers himself to be a member of the Australian community generally. His parents and living grandparents live in Australia. He is employed as [occupation omitted] at [employer omitted], and has worked there since 2016. Prior to this employment he held an [occupation omitted] position for 7 years at [employer omitted]. He is a member of the [Institute omitted]. He has funds on deposit in Australia and superannuation, but no liabilities. He has no business or financial ties with any other country nor any assets in any other country.
Both children are enrolled in schools with an explicit Christian association. The father pays school fees for [X] and proposes to do so for [Y] beginning in 2019.
The father’s partner Ms A is an Australian citizen and has lived here all her life. She is a [occupation omitted], and is employed as an [occupation omitted] at [employer omitted]. She gave evidence she has no ties to any other country, or any assets in other countries.
Conclusions concerning Risk
I am not satisfied that the mother has either established the presence of the risk she alleges nor has she succeeded in impugning the bona fides of the father in seeking travel with the children.
I am satisfied the father’s application is made bona fide and the children would not be exposed to any unacceptable risk if travel to the [country omitted] was permitted as sought by the father.
I am satisfied that the father has no motives for either not returning or remaining in the [country omitted]. I am not satisfied the mother has established any motive for attempting to travel from the [country omitted] to the [country omitted].
I am satisfied the father’s promise to return is likely to be honoured.
I gave weight to these considerations.
Additional considerations
The Court must have regard to each of the “additional considerations” under s.60CC(3) of the Act separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as are set out below:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
In R & R: Children’s Wishes [2000] FamCA 43; (2000) FLC 93-000, the Full Court of the Family Court of Australia said:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. It is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.
In Bondelmonte v Bondelmonte [2017] HCA 8 at [35]:
...whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.
In other words, context is critical and it is a matter for a judge to determine how giving effect to a child’s stated view accords with the child’s best interests (R v R (Children’s Wishes) (supra); Gillard & Gillard [2015] FamCAFC 169 at [81]).
This application is about overseas travel. There is some evidence about the children’s views. The mother’s evidence contained statements by the children indicating enthusiasm for travel. In paragraph 18 of her Affidavit, Ms A recalls comments by the children to the effect they wished they could have gone to [country omitted] in 2015 with their father and Ms A. From this I infer they are enthusiastic about overseas travel.
I give weight to this consideration.
(b) the nature of the relationship of the child with:
(i) each of the child's parents;
The children have a warm and loving relationship with both parents.
I give weight to this factor.
(ii) and other persons (including any grandparent or other relative of the child);
The proposed travel will take place with Ms A, the father’s current partner. She gave evidence in the father’s case. She is an Australian citizen and has lived in Australia her entire life. She gave evidence, which I accept, that she and the father have been in a committed relationship since 2009. She sees the children on a regular basis when they spend time with the father.
At paragraph 15 of her affidavit, Ms A states:
15. When if first met the children, I recall feeling an instant connection with them. I value Ms Edison’s role as the children’s mother. In the past when the children have been in my presence and have acted inappropriately, I have provided guidance to the children and in the absence of Mr Tolbert; I have acted as the children’s guardian. I have taken on this role on various occasions for the majority of the children’s lives.
I am satisfied that the children have a warm and constructive relationship with Ms A.
I give weight to this consideration.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The parties accept that on most issues they have worked co-operatively.
I give weight to this consideration.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
There was no dispute that both parties have fulfilled their obligations to maintain the children. The father pays child support.
I give weight to this consideration.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) or any other child, or other person (including any grandparent or other relative.
The proposed length of travel is short and will have little effect on the children’s present parenting arrangements.
I take account of the mother’s submission that if the children are not returned to Australia, this would have a significant, and likely adverse, impact. However, I refer to my conclusions above that the mother has not satisfied that there is any significant risk of non-return.
I give weight to this consideration.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
This consideration is not relevant to this present application.
(f) the capacity of:
(i) each of the child's parents; to provide for the needs of the child, including emotional and intellectual needs
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This consideration is not relevant to this present application.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
I have nothing to add in relation to this consideration.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
On the facts of this case, this consideration is not relevant.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
Both parents have shown a satisfactory attitude to the responsibilities of parenthood.
I give weight to this consideration,
(j) any family violence involving the child or a member of the child's family;
I have nothing further to add beyond the discussion above in connection with s.60CC(2)(b)
(k) if a family violence order applies, or has applied, (be it final, interim, contested or consented to) to the child or a member of the child’s family-any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On the facts of this case, this consideration is not relevant.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The parties have already operated within a framework of orders for over ten years, successfully. The mother submits it is preferable to shut down questions of overseas travel once and for all. This submission does not seem child-focussed. If overseas travel is in the best interest of the children, foreclosing further applications for travel of the mother withholds agreement, is not preferable, in my view.
I give weight to this consideration.
(m) any other fact or circumstance that the court thinks is relevant
The mother argued that since the children live primarily with her, her future happiness should be taken account of under this subparagraph. She submitted if travel was permitted, this would affect her emotional state in the period leading up to travel and during travel. I take account of this possibility, although I refer to my discussion above concerning the genuineness of her stated fears.
Security
The father offered a bond of $20,000 as security. Although the proposed travel is to a country which is a signatory to the Hague Convention, some security is appropriate in the circumstances of this case. The mother did not submit any other level of security was appropriate. In the circumstances of this case, where I have found the risk of the father not returning is not high, $20,000 is an appropriate amount.
Conclusion
Having considered the matters referred to above, and having given such matters the weight referred to and for the reasons set out herein, I am of the view that the father should be permitted to travel overseas during the dates proposed. This travel should take place in the company of Ms A. I am satisfied the orders as set out at the commencement of these reasons are in the best interests of the child and accordingly, will so order.
I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of Judge Harper
Date: 11 December 2018
Annexure “A”
Matter of TOLBERT AND EDISON
SYC3327/2015
Documents tendered from the 2 volumes of the Tender Bundle by the father and mother
Note: References to the source of a document in the Tender Bundle are to the first page of that document
| Source | Document tendered by the applicant father | Part tendered |
| Subpoena- Family and Community Services | ||
| TB 514 | Running Notes - 20 November 2001 | 514 |
| Subpoena – NSW Police | ||
| TB 663 | Ms G COPS entries | 663 |
| TB 665 | Ms B COPS entries | 665 |
| Source | Document tendered by the respondent mother | Part tendered |
| Father’s documents | ||
| TB 30 | Response filed 28 October 2009 | Orders sought particularly at 9 - 12 |
| TB 311 | Amended Response filed 21 October 2010 | Orders sought particularly at 32 - 34 |
| Front of TB | Affidavit Father 12 August 2005 | Paragraphs 26, 27, 30 |
| TB 56 | Affidavit Father 28 October 2009 | Paragraphs 83.3, 83.4 |
| TB 198 | Affidavit Father 21 October 2010 | Paragraphs 51, 59, 60, 82.3, 82.4, 91 |
| TB 302 | Affidavit Ms B 21 October 2010 | Paragraphs 4 - 11 |
| TB 305 | Affidavit Mr F | Paragraph 4 - 11 |
| TB 324 | Affidavit Father 26 May 2015 | Annexure F, paragraphs 28-32, 41 |
| TB 439 | Affidavit Father 10 June 2016 | Paragraphs 23, 29, 31, 32 |
| Mothers documents: | ||
| TB 108 | Affidavit of mother filed 7 October 2010 | Paragraphs 10, 33 - 39, 51, 59, 65 Annexures 1, 4, 7, 10, 12, 14 |
| TB 359 | Affidavit Mother filed 15 April 2016 | Paragraphs 1-52 Annexures G, H, I |
| Court documents | ||
| TB 757 | Family Report 29 September 2010 | Paragraphs 2, 10 |
| TB 778 | Judgment of Federal Magistrate Monahan delivered 12 May 2011 | Paragraphs 10, 11 |
| TB 823 | Judgment of Judge Monahan delivered 2 December 2016 | Paragraphs 73, 74 |
| Subpoena- Family and Community Services | ||
| TB 546 | Notification Intake Summary – 06 June 2000 | TB 547 |
| TB 549 | Assessment report – 16 June 2000 | TB 549-552 |
| TB 568 | Debriefing Sheet – 16 June 2000 | TB 568 |
| TB 558 | Notification Intake Summary – 02 August 2000 | TB 559 |
| TB 560 | Notification of Suspected Child Abuse or Neglect – 02 August 2000 | TB 560 |
| TB 540 | Notification Intake summary – 27 September 2001 | TB 540-544 |
| TB 533 | Job Overview – 27 September 2001 | TB 533 |
| TB 536 | Assessment report – 28 September 2001 | TB 536-539 |
| TB 519 | Running Notes – 18 October 2001 | TB 519 |
| TB 517 | Running Notes – 06 November 2001 | TB 517 |
| TB 514 | Running Notes – 20 November 2001 | TB 517 |
| Subpoena – Ms L, Psychologist | ||
| TB 695 | Case Notes Ms Edison 17 March 2005 to 14 August 2009 | TB 695-696 |
| Subpoena – Department of Immigration 2016 | ||
| TB 708 | Application for sponsorship for Sponsored family visitors – Mr K | TB 708-718 |
| TB 719 | Letter to Department Immigration by Mr Tolbert 22 April 2015 | TB 719 |
| Subpoena - Department of immigration 2017 | ||
| TB 739 | Mr Tolbert - Departing Australia Card [date] 2002 | TB 739 |
| TB 740 | Ms G - Departing Australia Card [date] 2002 | TB 740 |
| Subpoena – NSW Police | ||
| TB 663 | COPS entry in relation to Ms G – 27 September 2001 | TB 663 |
| [Company] - Interrogatories | ||
| TB 747 | Interrogatory 4(b) and response | TB 747 |
| Supreme Court NSW pleadings | ||
| TB 891 | Ms B v [Company]. Statement of Claim, 15/181581 Defence 2015/181481 | TB 891-910 |
| TB 926 | Mr F v [Company] Further Amended Statement of Claim, 2015/181496 Defence 2015/181496 | TB 926-939 |
| TB 965 | Mr F v [Company] Second Further Amended Statement of Claim, 2015/79981 Defence 2015/79981 | TB 965-1002 |
0
28
4