Whitby and Zeller and Anor
[2017] FamCAFC 101
•1 June 2017
FAMILY COURT OF AUSTRALIA
| WHITBY & ZELLER AND ANOR | [2017] FamCAFC 101 |
| FAMILY LAW – APPEAL – CHILDREN – Interim orders – Where the mother appeals against the primary judge’s refusal to replace the Independent Children’s Lawyer (“ICL”) – Where the evidence and submissions put to the primary judge by the mother did not make a case as to why the ICL should be replaced – No error established on the part of the primary judge – Where the mother appeals against an order restraining her from leaving Australia – Injunction properly made under s 114(3) of the Family Law Act 1975 (Cth) – Where injunction necessary to ensure mother’s compliance with orders – Where injunction made in the best interests of the child – Mother afforded procedural fairness in the making of the order – Primary judge’s reasons adequate – No error established – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 94AAA(3), 96AA, 114(3) |
| Bahonko v Sterjov (2008) 166 FCR 415 |
| APPELLANT: | Ms Whitby |
| RESPONDENT: | Mr Zeller |
| INDEPENDENT CHILDREN’S LAWYER: | Steven Ng |
| FILE NUMBER: | SYC | 2228 | of | 2011 |
| APPEAL NUMBER: | EA | 201 | of | 2016 |
| DATE DELIVERED: | 1 June 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 25 May 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 December 2016 |
| LOWER COURT MNC: | [2016] FCCA 3414 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Mestroni of Rafton Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Rebehy |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Adams & Partners Lawyers |
Orders
The appeal against the orders of Judge Monahan made on 8 December 2016 is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitby & Zeller and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 201 of 2016
File Number: SYC 2228 of 2011
| Ms Whitby |
Appellant
And
| Mr Zeller |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
In this appeal, Ms Whitby (“the mother”) challenges the orders made by Judge Monahan in parenting proceedings between her and Mr Zeller (“the father”). On 8 December 2016, his Honour refused to replace the Independent Children’s Lawyer (“ICL”) and restrained the mother from leaving the Commonwealth of Australia until further order. A request was made to the Australian Federal Police to place the mother on the Airport Watch List so as to give effect to the injunction and to prevent her from leaving the country.
The appeal was opposed by the father and the ICL.
At the commencement of the hearing the father made an oral application that the appeal be summarily dismissed pursuant to s 96AA of the Family Law Act1975 (Cth) (“the Act”). No notice of that application had been given to the mother and I declined to hear it.
Neither the father nor the ICL had complied with the direction for the filing of a Summary of Argument. Nonetheless, I permitted them to make oral submissions on the basis that if the mother wished to have an adjournment to prepare submissions in reply then she would have the chance to do so. Ultimately, she did not seek that opportunity.
Finally, the mother appeared without the assistance of an interpreter. She declined an adjournment so that she could present her appeal with the assistance of one.
Background
The orders made by the primary judge are but a part of protracted proceedings which have not yet been listed for a final hearing despite having been commenced in November 2013.
The proceedings concern the parties’ son C (“the child”), who was born in 2008. He has not seen his father since October 2010.
In order to understand the appeal, and in particular the injunction made by the primary judge, it is necessary to set out a considerable part of the history of the matter which is significantly drawn from earlier Full Court decisions (Whitby & Zeller [2014] FamCAFC 199; Whitby & Zeller (No. 2) [2014] FamCAFC 239 and Whitby & Zeller [2016] FamCAFC 140).
The father came to Australia in 2001 and has lived here ever since.
In January 2008 he returned to China and met the mother. The child was born there in 2008. The mother and the child came to Australia in 2009, during which year the parties were married. They lived together until March 2010. The mother and the child returned to China in October 2010.
In April 2011 the father commenced parenting proceedings in the then Federal Magistrates Court of Australia. They were later transferred to the Family Court of Australia but dismissed on 14 September 2012 because the whereabouts of the mother and the child remained unknown.
Whilst in China the mother remarried. The mother, her new partner and their child returned to live in Australia some time prior to November 2013. At that time the father became aware that they had returned and he commenced proceedings in the Federal Circuit Court seeking an order that the child spend time with him.
On 24 March 2014 orders were made placing the child on the Airport Watch List and restraining the mother from removing him from Australia.
On 22 July 2014 the court appointed an ICL. The mother sought leave to appeal against that order but leave was not granted and the appeal was dismissed (Whitby & Zeller [2014] FamCAFC 199).
An interim hearing of the father’s application to spend time with the child took place on 3 September 2014. It emerged at that hearing that the child did not know that the father was in fact his father, but instead believed that the mother’s new partner was his father. For this reason the mother opposed the orders.
On 12 September 2014 an order was made that the child spend time with the father under supervision at a contact centre one day each week. Orders were also made that the parties were to contact a specified organisation within seven days to arrange an appointment for therapeutic services for the reintroduction of the child to the father.
The mother was not satisfied with those orders and appealed. The appeal was dismissed on 15 December 2014 and an application for special leave to the High Court was refused on 13 May 2015. Despite that, over two years later, the orders have not been complied with and the child has not had any contact with his father.
On 11 April 2016 a report by a family consultant dated 6 April 2016 was released to the parties. In short, the family consultant recommended that it would be of benefit to the child to spend some time with his biological father. She recommended that the child be told of his paternity by his mother and that “arrangements be made for the reintroduction to occur with the assistance of contact centre staff”.
This report led to orders being made on 15 April 2016 requiring the mother to bring the child to Child Dispute Services and that a family consultant inform the child of his paternity.
On 23 May 2016 a different family consultant from the one who prepared the earlier report forwarded a memorandum to the Court in which she noted that the mother had attended Child Dispute Services in accordance with the orders. She was, however, concerned that it was the family consultant who was to inform the child of his paternity and not the mother. She thought this should appropriately occur with the assistance of the mother in a therapeutic process. The family consultant concluded:
In my opinion it would be detrimental for [the child] to receive puzzling and perhaps frightening information of huge significance about his life from someone he has never met and who he will likely not have any further dealings with.
…
I am aware that not proceeding with the order would appear to endorse [the mother’s] unfortunate stance and at the same time deprive [the father] of what might be seen to be his right to have his son know about him but I respectfully recommend to the Court that so proceeding would be against [the child’s] best interests at this stage.
The matter returned to court on 15 June 2016. An order was made that the parties arrange an appointment with Dr D, a psychologist with experience in family matters, and continue to attend upon her in accordance with her requirements for the purpose of reintroducing the child to the father.
Dr D was not available to conduct the reintroduction therapy and on 18 July 2016 the primary judge amended the orders replacing Dr D with Ms F. The parties were directed to attend three specific appointments with Ms F (the times and dates being specified in the orders) and on such further occasions as Ms F might require.
The mother appealed against those orders. That appeal was dismissed by Ainslie-Wallace J on 3 August 2016.
Thus, when the proceedings came again before the primary judge later on 8 December 2016, there were extant orders for the child to be reintroduced to his father and to spend time with him (which had been made on 12 September 2014) and extant orders for that reintroduction to be carried out by Ms F.
The transcript of the proceedings on 8 December 2016 records that the mother informed the Court that she had gone to China on 2 August 2016 and returned to Australia on 21 October 2016.
It emerges from that transcript that the mother did not inform either the father or the ICL that she would be returning to China and leaving the child in the care of the stepfather. Whilst in China the mother missed two court events which caused the Court, the father and the ICL to be anxious as to where she and the child might be and about the child’s welfare. This apparently led to the ICL issuing a large number of subpoenas to try to ascertain the location of the child. Indeed, during that period, the ICL sought and obtained a location order.
On 3 November 2016 the mother filed an Amended Response which, amongst other things, sought to remove the child’s name from the Airport Watch List. During the hearing on 8 December 2016, the mother informed the Court that she wished to return to live in China. She also informed the Court that she had divorced her new partner whilst in China and that he had ceased to live with her and the child one or two weeks prior to the hearing. There was a suggestion that he had returned to live in China. The Court was also told that her mother had arrived from China to help her look after the two children, being the child and his younger half-sister.
The Appeal
This appeal is being heard by a single judge pursuant to a direction given under s 94AAA(3) of the Act by the Chief Justice on 15 February 2017.
The mother appeared for herself on the appeal. The grounds of appeal were set out in the mother’s Notice of Appeal filed 16 December 2016 as follows:
1.ICL’s words are full of lies, care nothing about children. He is irresponsible and unqualified for this case.
2.3 organisations’ 6 psychologists’ actions and reports have already proved reintroduction should stop and grant sole parenting order to the mother. One instance memorandum says clearly that so proceeding would be against the child’s best interests at this stage.
3.The whole case becomes ridiculous and against the spirit of the children’s law system. Once the hurt happens, the damage to the child is eternal, there’ll be no turning back to the child.
4.The mother is not criminal, restrains her from leaving Australia and is forced to do bad things to hurt the child, which is against the mother’s human rights.
It is clear that these grounds of appeal do not readily disclose what the mother asserts to be errors on the part of the primary judge. In Bahonko v Sterjov (2008) 166 FCR 415 at [3], the Full Court of the Federal Court of Australia said:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error. This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
(Citations omitted)
Notwithstanding the inadequate grounds of appeal, I have attempted to deal with what appear to me to be the concerns raised by the mother. I take these grounds to raise three issues.
The first is whether the ICL should have been replaced.
The second is whether the attempts to reintroduce the child to his father should cease. This is not a valid ground of appeal as no orders were made on 8 December 2016 to that effect. That issue was the subject of earlier orders, which themselves were the subject of unsuccessful appeals by the mother. They cannot now be the subject of this appeal.
The final issue is whether or not the injunction against the mother leaving Australia should have been made.
The mother’s Summary of Argument was also prepared by her and did not take the matter any further.
Should the ICL have been replaced?
The mother sought an order that the ICL be replaced by another lawyer. The application was refused by the primary judge on the basis that it was not supported by any evidence.
The only evidence filed by the mother consisted of an affidavit that contained the following two paragraphs:
1.The order made on 03/09/2014 orders the child live with the mother. See Annex 1.
2. The mother has to live in China because of injustice here.
The reference to the annexure was a reference to an order made on
3 September 2014 that pending further order the child live with the mother. The mother’s Amended Response filed on 3 November 2016 sought as a final order that the child’s name be removed from the Airport Watch List. The interim order sought was that the ICL be changed.I pause to interpolate that it is clear enough from the mother’s Response and affidavit, when read together, that the mother is seeking to relocate to China with the child. International relocations are customarily heard in the Family Court of Australia and one wonders why the proceedings have not yet been transferred. Indeed, the complexities in this matter would indicate that it should have been transferred some time ago.
The mother’s submissions to the primary judge in support of her application for the replacement of the ICL consisted largely of the following:
MS [WHITBY]: I used to copy ..... like, as a – not just copy, and also I got counselling report or the thing, and I think I ..... I emailed to Mr, you know, Ng, and also the court why, one, two, three, four, and the whole thing is – like I said, he is independent children’s lawyer. You know, I never said, okay, other party lawyer, he is ..... or she is ..... because for ICL, he should represent for the child. He should be independent. He can’t, you know, just, you know, listen to ..... stuff or – and many times, like what did he do? For example, I have many proofs. I have documents I have already sent to court. I think you could search your computer. Lots of papers, sir. I was highlight many parts.
…
MS [WHITBY]: No. I mean, I gave lots of proofs, like many time. Also, the – you said, like, communication. For example, I still remember there are many examples. I ..... I sent email to the, you know, judge – you know, your email, and also I sent other party, and also I sent ..... about – for example, once, the – you know UNIFAM. UNIFAM said, okay, I ..... every procedure, they want me come. Like, I won’t obey order you ask – you know, the court ask me to do, and then [the ICL] write the letter, said, “Okay. [Ms Whitby], you didn’t operate – cooperate with UNIFAM’s counselling”, and that, finally, UNIFAM’s – you know, they gave the correct letter ..... always I, the mother, comply with that.
They ..... procedure. Never break the law, you know, the thing. Was I ..... UNIFAM emailed that. I think they have sent it or something. I don’t know. They emailed you the – you know, your email, and also gave ICL the information. Just – this is one thing ..... he should be – like, he’s from Legal Aid; he should be independent, but he always, you know, not – like, you know, he’s just like the between me and the other party. He cannot represent the other – cannot, you know, represent me. He should be the child’s – you know, the lawyer – supposed to, but ..... I can give one ..... three years. So that’s why I want to change him to other ICL.
(Transcript 8 December 2016, pp.21-22)
In short, the mother said that she wanted an ICL who was independent and who “really think[s] about the best interests of the child” (Transcript 8 December 2016, p.23).
The primary judge’s brief reasons consisted of the following:
7.Each party made submissions to the Court in support of their respective positions.
8.Mr Ng was happy to respond to the mother’s assertions and was willing to indicate to the Court that if the Court saw benefit in the general running of this matter that he be replaced by somebody else, he would not stand in the way of that, nor see any particular difficulties from his perspective if that should occur.
9.Of course, Mr Ng also pointed out that if the Court saw benefits in him being retained, given the history of this matter, given his knowledge of the matter, given that he has been here through every application and counterapplication that has been made, and through all the appeals that the mother has lodged in the Full Court of the Family Court of Australia, and in the High Court of Australia, he would understand that.
10.As Mr Sissini, the legal representative for the father, pointed out, he believes that it is that knowledge of the matter and the way that Mr Ng has responded to the difficulties of this matter in a calm and measured way, and given the number of subpoenas that the ICL has had to issue, that he has probably done his job in an exemplary way.
11.The Court agrees with the position of the father and the Independent Children’s Lawyer. The mother has not convinced the Court today that an objective standard could be applied by anybody to suggest that Mr Ng has not acted in an appropriate way throughout the course of these very long proceedings. This is not the first time the mother, as I have indicated, has sought to a change of ICL or a change in the position. And I am not satisfied on the submissions she made today or the evidence that she alleges is before the Court that the standard is met.
Neither the evidence nor the submissions before the primary judge identified why the ICL lacked independence and why he was not acting in the best interests of the child.
It may be easily inferred that the basis of the mother’s dissatisfaction with the ICL was that he was pursuing the reintroduction of the child to his father. This has been strenuously opposed by the mother at every stage. In advocating reintroduction, of course, the ICL is acting in accordance with the recommendations of the two family consultants. In any event, the ICL is obliged to represent the best interests of the child and not simply adopt the course favoured by the mother.
The mother also complained to the primary judge about the number of subpoenas that the ICL had issued. However, that course can readily be explained as justifiable in light of the fact that the mother returned to China without informing the father or the ICL of the whereabouts of the child or about whose care the child would be in while she was away.
In short, the mother did not make out a case at all for the consideration of the replacement of the ICL and the primary judge was entitled to reject it as he did.
The injunction preventing the mother from leaving Australia
His Honour’s reasons for making this order are as follows:
12.There are existing orders in place. I have been reassured today by the mother that she will comply with those orders. So I would like to give the matter some time for those orders to be complied with.
13.I have some major concerns about what has happened in recent times, in particular who has been looking after [the child]. The mother indicated today that she appears to have separated, if not divorced, from her second husband in circumstances which mean that he may now be living in China, and that her mother has come over from China to assist her. I am not exactly sure why that is.
14.I note that the mother recently travelled to China for an extended period of time. I have sufficient concerns given the mother’s absence on the last two occasions, from the Court’s perspective, to ensure that the mother is attending on the next occasion. I intend to add her name to the Airport Watch List for a short period of time and that can be reviewed when the matter returns before me in the New Year. That will ensure her attendance. I believe that is appropriate and in the best interests of the child and balances the concerns now that she is back in the country.
It is to be noted that there was no application before the Court for the injunction that was ultimately made. Rather, the Court acted on its own motion, as the following exchange makes clear:
HIS HONOUR: And you filed that on 3 November this year, and clearly you’re seeking a final order to remove [C’s] name from the airport watch list. All right. Well, that will be something that a final hearing can consider down the track, but it’s not something I’m going to consider today.
THE INTERPRETER: I want to go back and live in China instead of in Australia.
HIS HONOUR: All right. You won’t be going back to live in China until this case is determined.
THE INTERPRETER: It’s my right to live wherever I want.
HIS HONOUR: I understand that, and I don’t disagree with you, ma’am, but I made orders two and a half years ago. You took me to the High Court. The High Court said that you were in error. You then – I brought the matter back. You still haven’t complied with my orders. You took me again to the Full Court. They said that that was – you were in error, and now we’re back here two and a half years later, and [the child] still doesn’t know that the applicant is his father, and the applicant isn’t spending time in a contact centre, an order I made in 2014.
MS [WHITBY]: Well, sir, you know, I just follow – like I told ..... I follow procedure ..... even in China, if you disagree with a decision, you can appeal to court. If you think, “Okay. Tell me, [Ms Whitby] – you have already, you know, you can’t do that.” Just tell me. That is the first thing. Second thing is, you know, like, you know ..... says that he’s going to live with me, and, for me, my human rights – like, I don’t – I’m tired of living Australia, so I want to - - -
HIS HONOUR: Okay.
MS [WHITBY]: - - - live in, you know, China.
HIS HONOUR: Let me make this clear to you, ma’am.
MS [WHITBY]: So I don’t know how to - - -
HIS HONOUR: You will have - - -
MS [WHITBY]: - - - do that.
HIS HONOUR: You will have every right, at a final hearing - - -
MS [WHITBY]: Yes.
HIS HONOUR: - - - to convince me to discharge the airport watch list and allow you to relocate to China with [the child]; however, this is not a final hearing today, and, given the circumstances where you’ve already removed [the child] during previous court proceedings in 2010, I don’t think the court is going to be open to any suggestion that I should make that order on an interim basis, so the reality is [the child] will be remaining in Australia until such time as the court determines the final orders that each party is seeking.
MS [WHITBY]: But ..... year ago - - -
HIS HONOUR: Ma’am - - -
MS [WHITBY]: - - - I told you I didn’t - - -
HIS HONOUR: - - - I – she can – you can say what you want, but it’s not a final hearing today. This is – I’ve lost count of how many hearings we’ve had. The last two hearings, you didn’t turn up. You may have been ill, but I notice your recent affidavit doesn’t attach anything along those lines, but that’s just a comment. Today, we’re here to ensure that you will comply with the orders that I made some time ago for you to take [the child] to a nominated counsellor so [the child] can be told the truth about his parentage, and, thereafter, [the child] starts to spend time at a contact centre with his father.
MS [WHITBY]: But, you know, like, many years ago – it’s, you know, for [the child’s] welfare. I had to, you know - - -
HIS HONOUR: I know, and you will have every right to argue that - - -
MS [WHITBY]: - - - take her to – I didn’t break the law, your Honour.
HIS HONOUR: Please don’t talk over me. You will have every right to argue that at a final hearing, whenever that may occur, but part of the reason we haven’t had a final hearing, if I could be candid, is because you disappeared for several months, and we didn’t know where you were, let alone where [the child] was, and the ICL, at expense of the taxpayer, has had to file a large number of subpoenas to find out exactly where [the child] is, and I’ve had to make an order requesting the Department of Community Services to intervene in these proceedings because I didn’t know where [the child] was. It would have been so much easier if you would have told us you were going to China and that [the child] was staying in the care of his step-father - - -
(Transcript 8 December 2016, pp.12-14)
There are three issues that arise for consideration:
·Should the mother have been restrained from leaving Australia pending the final hearing?
·Was the mother afforded procedural fairness in the making of the order?
·Were the reasons adequate?
As to the first, it is clear that the Court has the power to make the order under
s 114(3) of the Act: see Sampson and Hartnett (No 10) (2007) FLC 93-350 (“Sampson”); Zanda & Zanda (2014) FLC 93-607 at [135]; Gilles & Irby [2016] FamCAFC 13 (“Gilles”) at [44]-[48].
The Court has recognised, however, that there are considerable restraints on the exercise of that power having regard to a party’s general freedom of movement. The Court in Gilles said:
45.The Court went on to examine the foundation for that power, ultimately concluding that it lay in s 114(3) of the Act and not
s 68B, and went on to hold that “perhaps obviously in a parenting case, the justice or convenience of an injunction is likely to be closely connected with the parenting orders made and the findings that underpin those orders”.
46.Important to the instant issues, this Court in Sampson also held that statements by the High Court in AMS (above) “…seem to recognize the rarity of an order crafted outside the proposals of the parties, but not to exclude the possibility of such an order” before concluding that s 114(3) of the Act does give power to “enjoin a parent from relocating or to relocate”. However the power is caveated; the injunction must be “…no more than is necessary to secure the best interests of a child” noting that “[t]he proper exercise of such a power is likely to be rare…”.
(Footnotes omitted)
The primary judge was rightly concerned about the welfare of the child. Longstanding orders made by the Court had been completely ignored. Recently the mother had returned to China without notifying the parties or the ICL that she had done so or in whose care she had left the child. She missed two court events without anyone knowing why this was so. The Court, and the father and ICL, were anxious as to the whereabouts of the child and his welfare.
It emerged during the hearing that the mother had left the child with his stepfather, a person she then divorced whilst in China and who returned to China shortly after her return.
Significantly, the following exchange indicates that at least one of the purposes of the mother’s return to China was to avoid complying with the orders for the child to be taken to Ms F for reintroduction with the father:
HIS HONOUR: Okay. All right. So I will just note for the record mother asserts from the bar table that she left Australia for China on 2 August and returned from China on 21 October.
THE INTERPRETER: Approximately, because my records show.
HIS HONOUR: All right. To the best of her recollection, the mother – it’s the mother’s recollection that she left Australia on or about 2 August this year and returned on or about 21 August this year. Now, can you ask the mother has she made any arrangements to take [the child] to Ms [F]?
THE INTERPRETER: Yes.
HIS HONOUR: When did she make those arrangements?
THE INTERPRETER: I was about to, then I went back to China.
HIS HONOUR: Sorry. You were about to do what?
THE INTERPRETER: I went back to China, so no one could take [the child].
HIS HONOUR: All right. Now you’re back, you will be taking [the child] as soon as you can, I take it?
THE INTERPRETER: The court gave me an order; I will follow that.
HIS HONOUR: Well, I made the order a long time ago, and you haven’t followed it yet, so do I have your reassurance today that, if an appointment is made for you to present [the child] to Ms [F], or someone like Ms [F], you will comply with that order?
THE INTERPRETER: I will.
(Transcript 8 December 2016, p.10)
The present position of the child is that he is living with his mother, the maternal grandmother and his half-sister. The maternal grandmother was not a party to the proceedings and thus there was no obligation on her to take the child to Ms F in compliance with the orders. Thus, if the mother was again to return to China the orders would again be defeated.
As is made clear in Sampson and Gilles, the justice or convenience of an injunction of the kind made here is likely to be closely connected with the parenting orders and the findings that underpin these orders. The desirability of an injunction will depend very much upon those considerations. The injunction must be necessary and the circumstances in which such injunctions are granted are likely to be rare.
In this matter the Court accepted the expert opinion of the two family consultants that it is in the child’s best interests for him to be informed that the father is one of his parents and for there to be a gradual reintroduction of the father to him.
Whilst the child is prevented from leaving Australia, the mother’s statements made to the primary judge indicate that she is prepared to avoid compliance with those orders by leaving Australia and by not informing the Court, the father or the ICL of the person with whom the child was living during her absence. Of course, had she identified the person caring for the child, that person could be appropriately joined as a party to the proceedings and orders made for them to comply with the earlier orders.
A significant feature of the expert opinion of the family consultants was that the mother should inform the child of his parentage herself, with the assistance of therapeutic support or, at the least, that the mother should be involved. Their opinion was also that the mother herself should be part of the therapy assisting the child to accept this information and to assist with his reintroduction to the father. Such a course has been held to be in the best interests of the child.
The mother can only assist in this process if she is in Australia.
As I have said, she informed the primary judge that she left Australia in August in order to avoid taking the child to Ms F.
It is quite clear from his Honour’s reasons that the injunction was made because he believed that the order was in the best interests of the child.
Thus, the injunction is intimately concerned with the welfare of the child. The very unusual, if not extreme, features of this matter justify the order that was made.
I am concerned about the possible duration of any injunction. Such restraints on a person should only remain in place for the time that they are necessary.
If the intent is for it to remain in place until a final hearing then that final hearing must come on as soon as possible so as to minimise the period of infringement of the mother’s rights to freedom of movement. Inexplicably, no such date has yet been set. If the Federal Circuit Court cannot offer a very prompt hearing date in this matter then that, of itself, justifies an immediate transfer to the Family Court. As I have said, having regard to the complications in this matter, perhaps that should have happened long ago.
My concern is somewhat assuaged by the following matters. The first is that, at least in the course of the hearing, the primary judge indicated that the mother would be required to remain in Australia until the final hearing had taken place. However, the order that was made is not to that effect, as it operates until further order. In the reasons his Honour said that the order would apply for a “short period of time and that can be reviewed when the matter returns before me in the New Year” (at [14]).
Be that as it may, this matter is well overdue for a final hearing. There have already been 19 occasions when this matter has been before the Federal Circuit Court and no final hearing date has been set. That alone indicates that the need for a final hearing is compelling, but that need is exacerbated by the injunction that has been made.
The issue of procedural fairness arises from the fact that the mother was not given notice of the proposed injunction prior to the hearing. However, as is clear from the transcript of the hearing, the basis for that order only emerged during the hearing itself. The mother was given the opportunity to make submissions as to the order. It was expressed to be until further order and, as the primary judge said, an application to review the order can always be made.
Finally, if the primary judge had adjourned the matter to give the mother time to argue against such an order, that would have given her the opportunity for it to be defeated by again leaving Australia.
Having regard to the issues that were before the primary judge and the manner in which they arose I am not satisfied that there was a want of procedural fairness.
Finally, I turn to the adequacy of his Honour’s reasons, which are brief indeed. In those reasons his Honour referred to his “major concerns” arising from the recent trip to China and remarked that the injunction would “balance the concerns” (at [13] – [14]).
The reasons were given ex tempore immediately after the parties’ submissions concluded. As the transcript indicates, the matter was heard in the course of a busy duty list.
In those circumstances, it can be appropriate to have regard to the exchanges that took place during the hearing, accepting, of course, that it is not merely desirable, but the expected course, that the reasons fully set out the basis of the decision, even if briefly (see Strahan & PP Lawyers Pty Ltd [2017] FamCAFC 22 at [42] – [51]).
When regard is had to those exchanges, the concerns of the primary judge are apparent and are the same as those that have been referred to earlier. In essence, the reasons are a reiteration or summary of the views expressed during the course of the hearing, as the following makes clear:
MS [WHITBY]: Your Honour, the thing - - -
HIS HONOUR: Yes.
MS [WHITBY]: - - - is, since I am not a criminal, why my name is on airport watch list?
HIS HONOUR: Because you failed to turn up on the last two occasions, and it was clear, on your own evidence, that you were in China - - -
MS [WHITBY]: ..... violate my human rights.
HIS HONOUR: - - - and you’ve taken off to China in previous proceedings with the child.
MS [WHITBY]: You know, I am a Chinese citizen - - -
HIS HONOUR: Until this is determined - - -
…
HIS HONOUR: - - - today. Please don’t speak over me. I’m trying to explain things to you to assist you to understand why I’ve made the order, and I’m happy to provide you with those reasons, but, if you interrupt me, it makes it difficult for me to provide those reasons. I have concerns about [the child]. I don’t know who looked after [the child] for the last two and a half months. We’ve had to – the ICL has had to look – get subpoenas from the school. We’ve had to do a location order to try and find him. I think that his best interests deserve that we have some certainty that you will be able to look after him, because that’s what you want to do.
…
HIS HONOUR: Ma’am, I’m bringing you back - - -
MS [WHITBY]: Yes.
HIS HONOUR: - - - within the shortest possible timeframe that I think is appropriate - - -
MS [WHITBY]: It’s - - -
HIS HONOUR: - - - and I can review that airport watch list on the next occasion, particularly in circumstances where I have no – where I have confidence that you’ve complied with my orders, that [the child] is now aware of his true biological status, and that time has either commenced or about to commence in a contact centre. If I could be reassured of all those factors, then I would probably be more inclined to lift the order, but it’s only in as a temporary measure, for the reasons that I’ve outlined. Thank you. Formally - - -
(Transcript 8 December 2016, pp.27-29)
The obligations on judges to give adequate reasons are well known: Bennett and Bennett (1991) FLC 92-191 at 78,266. The reasons must enable the parties to understand the basis of the decision and the extent to which their arguments have been understood and accepted: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
Having regard to the exchanges during the hearing and the reasons it is quite clear why his Honour made the injunction. His reasoning process is apparent. Therefore his reasons, although brief, are not inadequate.
There is no merit in any of the grounds of appeal and the appeal will be dismissed.
Costs
Quite properly in the circumstances, neither the father nor the ICL sought an order for costs in the event that the appeal was to be dismissed.
There will be no order as to costs.
I certify that the preceding seventy eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 1 June 2017.
Legal Associate:
Date: 1 June 2017
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