White and Green and Ors
[2009] FamCA 237
•1 April 2009
FAMILY COURT OF AUSTRALIA
| WHITE & GREEN AND ORS (NO. 2) | [2009] FamCA 237 |
| FAMILY LAW – CHILDREN – Interim parenting orders where child in Singapore – order for the return of the child to Australia where husband restrained from leaving Australia – Determination of best interest principles in a truncated hearing – injunctions relating to husband and third parties – application by husband for discharge of an exparte order for the appointment of a case guardian for the wife |
| Family Law Act 1975 (Cth) |
| Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 Blue Seas Investments Pty Ltd v Mitchell and MacGillivray (1999) FLC 92-856 Cardile v Led Builders Pty Ltd [1999] HCA 18; 198 CLR 380 Goode and Goode (2006) FLC 93-286 In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170 Kannis v Kannis (2003) FLC 93-135 Keach (2007) FLC 93-353 LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91 Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365; (2004) FLC 174 Rhodes v Swithenbank (1889) 22 QBD 577 Sampson and Hartnett (No 10) [2007] FamCA 1365 State Rail Authority v Hammond (1988) 15 NSWLR 395 Stevenson v State of Tasmania [2005] TASSC 33 The Queen v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447 Thomas v Mowbray [2007] HCA 33 Wilson (2008) FamCA 903 |
| APPLICANT: | Mrs White (Snr) as Case Guardian for Ms White |
| RESPONDENT: | Mr Green |
| SECOND & THIRD RESPONDENTS: | Mr and Mrs Green (Snr) |
| FILE NUMBER: | MLC | 9805 | of | 2008 |
| DATE DELIVERED: | 1 April 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 17 FEBRUARY 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR KIRKHAM QC WITH MR WOOD |
| SOLICITOR FOR THE APPLICANT: | GADENS LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR ST JOHN SC |
| SOLICITOR FOR THE RESPONDENT: | MDP MCDONALD PARTNERS |
| COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: | MR ST JOHN SC |
| SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: | MDP MCDONALD PARTNERS |
Orders
That until further order, the child … born … March 2008 live with the wife and Mrs White (Snr).
That the husband Mr Green return the child to Australia forthwith.
That paragraph 1 of the orders made 22 December 2008 (that is the injunction restraining Mr Green (Snr)) is forthwith discharged.
That the Australian Federal Police be forthwith advised of the discharge of the said order.
That pursuant to Section 68L(2) the Family Law Act 1975 the child … born on … March 2008 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.
That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.
That upon the child being returned to Australia, the parenting applications filed by the wife and the case guardian and the husband be listed for an urgent interim hearing in relation to:
(a)the time to be spent between the husband and the child pending further order; and
(b) any other orders relating to the ongoing care of the child.
IT IS NOTED that publication of this judgment under the pseudonym White & Green and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9805 of 2008
| MRS WHITE (SNR) as Case Guardian for Ms White |
Applicant
And
| MR GREEN |
Respondent
And
| MR and MRS GREEN (SNR) |
Second and Third Respondents
REASONS FOR JUDGMENT
This case involves an interim application returnable after ex parte orders were made initially in October 2008. There are a number of contentious issues. Before I embarked upon a hearing on the papers, Benjamin J determined an application between the parties about forum. Accordingly, in a very short space of time, the parties have had significant litigation.
Background
The subject child was born in March 2008. She is currently living with her paternal grandmother in Singapore while the various parenting and parenting-related disputes rage on in Australia. The subject child is the only child of the marriage between the husband and the wife.
The child’s mother (“the wife”) currently lives in Australia. She has a serious susceptibility to strokes and is currently disabled and receiving neurological treatment.
The child’s father (“the husband”) currently remains in Australia as a result of orders made ex parte on 28 October 2008 by Senior Registrar FitzGibbon. In fact, at the time of the orders, the husband was not in Australia but despite being aware of them being made, he returned to Australia and is now bound by them. He currently indicates a desire to live in Singapore.
The child’s paternal grandfather (“the grandfather”) also remains in Australia as a result of similar orders to those affecting the husband made on an ex parte basis on 22 December 2008. The grandfather wishes to return to business activities in Singapore.
The child’s maternal grandmother (“the applicant’) was appointed by an order made ex parte on 28 October 2008 as the wife’s case guardian.
In the same exparte hearing, interim orders were made that the child live with the wife and the applicant.
On 13 February 2009, after a contested preliminary hearing held between 28 January and 29 January 2009, Benjamin J made orders that the husband’s application to stay the parenting proceedings brought by the applicant, should be dismissed. His Honour made those orders on the basis that Australia is not a “clearly inappropriate forum” for the parenting proceedings.
Only days later after the decision of Benjamin J, the proceedings came before me.
The issues to be determined, depending upon the various orders I have to make, are:
(a)whether the ex parte case guardianship order should be allowed to stand;
(b)whether the ex parte injunction against the grandfather should continue;
(c)whether the ex parte injunction against the husband should continue;
(d)what, if any, parenting orders relating to the child should be made on an interim basis pending further trial;
(e)whether, if injunctions remain in place, the case guardian should be ordered to give any undertaking as to damages; and
(f)whether as a preliminary point to determining any parenting order, the husband should be (again) ordered to arrange the return of the child to Australia.
In all of this, the child remains in the middle of what the applicant’s lawyer described as “an impasse”. The sad consequence of that impasse is that this child who is less than one year old, has no contact with either her mother or her father. The child is clearly being cared for by her paternal grandmother alone in Singapore.
The case guardian issue
The order for the case guardian was made ex parte. The Senior Registrar in his reasons, said that the wife was suffering from a neurological disorder as a result of which she has cognitive impairment, weakness in her right side and consequential effects upon her speech, making her reliant upon others for her care and unable to give what would be considered clear and reliable instructions. The Senior Registrar said that at that time, VCAT had ordered the wife’s mother to be her financial guardian. The Senior Registrar was satisfied “at least ex parte” that an order should be made having regard to the matters set out in Rule 6.10 of the Family Law Rules 2004.
Senior counsel for the husband and the grandfather urged me to determine as a preliminary point whether the case guardian order should be discharged on the basis that the applicant would otherwise have no standing on the current application relating to parenting orders as well as the injunctions, if the order was discharged. I ruled that I was not prepared to take that course but rather would hear the whole of the argument of both sides and then determine the issues sequentially. I did that notwithstanding the protest of senior counsel for the husband that it was a denial of natural justice. I reject that because:
(a)the husband and the grandfather have had an opportunity to put all of the matters before me that they so desired;
(b)the order for the appointment of the case guardian was extant albeit it was made ex parte and unlike injunctions, the return of the case to court does not automatically require the court to review the ex parte orders particularly if the court had been satisfied at the time that it was appropriate to exercise the discretion to make the order;
(c)the applicant obtained from the relevant State authority an appointment of responsibility for the wife, recognized by the rules of this Court. The fact that that appointment was not made until after the ex-parte order was made was inconsequential.
(d)the appointment of a case guardian is always subject to the scrutiny of the court but, as in this case, the application by the husband to discharge her was made on a myriad of facts which in my view, are integrally wound up with the parenting dispute and all have to be examined together to obtain a comprehensive picture.
The Victorian Civil and Administrative Tribunal has made the order giving the case guardian full responsibility for the care of the wife. That was over the opposition of the husband.
In my view, notwithstanding the supervisory role of the Court, it is still the husband who bears the onus of establishing that the case guardian order should be discharged rather than the applicant having to establish her right to its continuance.
When the husband filed his responding material on 17 November 2008, he made clear that the case guardian issue was disputed. It should be noted that no objection was taken to the case guardian arguing the forum question before Benjamin J.
Relevant principles
Rule 6.08 of the Family Law Rules 2004 provides:
(1)A child or a person with a disability may start, continue, respond to, or seek to intervene in, a case only by a case guardian.
Rule 6.09 provides:
A person may be a case guardian if the person:
(a) is an adult;
(b)has no interest in the case that is adverse to the interest of the person needing the case guardian;
(c)can fairly and competently conduct the case for the person needing the case guardian; and
(d) has consented to act as the case guardian.
Rule 6.10 provides:
(1)A person may apply for the appointment, replacement or removal of a person as the case guardian of a party.
(2)A person who is a manager of the affairs of a party is taken to be appointed as the case guardian of the party if the person has filed:
(a)a notice of address for service; and
(b)an affidavit which:
(i)provides evidence that the person has been appointed manager of the affairs of the party; and
(ii)states that the person consents to being appointed as the case guardian of the party.
Rule 6.12 provides:
A person appointed as a case guardian of a party must give written notice of the appointment to each other party and any independent children’s lawyer in the case.
Rule 6.13 provides:
(1)A person appointed as the case guardian of a party:
(a)is bound by these Rules;
(b)must do anything required by these Rules to be done by the party;
(c)may, for the benefit of the party, do anything permitted by these Rules to be done by the party; and
(d)if seeking a consent order (other than an order relating to practice or procedure), must file an affidavit setting out the facts relied on to satisfy the court that the order is in the party’s best interests.
(2)The duty of disclosure applies to a case guardian for a child and a person with a disability.
In the dictionary to the Family Law Rules, a person with a disability is described as one who because of physical or mental disability, does not understand the nature or possible consequences of a case or, is not capable of adequately conducting or giving adequate instruction for the conduct of the case.
The essence of the dispute in this case revolves around Rule 6.09(b) and (c).
The husband argues that the case guardian is not only acting adversely to the interests of the wife but also conducting the case other than fairly and competently. It is not entirely clear whether that is a reference to fairness and competence generally or just in relation to the wife.
The wording of Rule 6.09 is different from any other legislative enactment in other jurisdictions. For example, the Civil Procedure Rules 2008 for the County Court of Victoria require that the litigation guardian be a person not under disability who has no interest in the proceeding adverse to that of the person under a disability. Regulation 295 of the Supreme Court Rules 2000 in Tasmania simply describes the appointment of a litigation guardian as a person whom the court finds “appropriate”. The Federal Magistrates Court Rules 2001 (Regulation 11.10) define a litigation guardian as a person who has no interest in the proceeding adverse to the interest of the person needing the litigation guardian. Similar provisions apply in Queensland (Uniform Civil Procedure Rules 1999, s 94) and the High Court Rules 2004 Regulation 21.08.7.
Historically, an appointment of a guardian was designed to ensure that someone was answerable to the court on behalf of the disabled litigant. In addition, orders were made to enable crucial decisions affecting the litigant to be properly and responsibly made. Cost implications were always a serious consideration.
In State Rail Authority v Hammond (1988) 15 NSWLR 395 Kirby P described the nature of the rule as procedural and not substantive. His Honour said that what was affected was not the capacity to sue but the procedure by which that capacity was exercised. That is still the case having regard to the fact that in most jurisdictions, the provision is a rule of court.
The way in which the role is to be carried out by the litigation guardian has been described in a number of different ways. The case guardian is the person responsible to the court for the “propriety” of the action[1]. Everything that the case guardian does must be for the “benefit” of the disabled person because it is otherwise done without authority[2].
[1]Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541
[2]Stevenson v State of Tasmania [2005] TASSC 33 and also Rhodes v Swithenbank (1889) 22 QBD 577 at 579
In Kannis v Kannis (2003) FLC 93-135 a case under the old rules, the Full Court described the role of the case guardian (then Next Friend) as:
The role of the Next Friend is to conduct litigation and provide appropriate instructions to so do. The appointment of a Next Friend is also necessary to enable a decision to be given which will be binding on the person under a disability.
The Full Court then said:
The responsibilities of a guardian ad litem for what was then known as a person with a mental defect are discussed in Read v Read [1944] SASR 26 at 28-29:
“[A] person who accepts the duties of guardian ad litem does not do so…as a matter of form. A guardian ad litem on behalf of an insane person or an infant represents that person before the Court, and it is his duty to see that every proper and legitimate step for that person’s representation is taken. He has got to give his mind to it, and decide for himself upon the material put before him what course of action to take…”
The Full Court then discussed the question of a court not necessarily being limited in its power to remove a Next Friend. The court indicated that the rule was a discretionary power both as to the appointment and the removal of a Next Friend.
Finally, the Full Court focussed upon the fact that whilst there may or may not have been bad faith towards the court, in that case, there was “none towards the husband”.
The basis of the husband’s complaint in these proceedings is essentially two-fold. First, he argues that the case guardian is acting contrary to the wishes of the wife by keeping her away from him and preventing her reconciling with him and secondly, the language used by senior counsel for the case guardian which is highly critical of the husband, must be construed as indicating she is not fairly and competently conducting the case for the wife. In respect of the first of those two matters, there is no evidence before me by any expert as to what the wife’s statements really mean about her wish to be with the husband. Senior counsel for the husband urged me to find that the case guardian’s action was contrary to the fundamental principle set out in s 43 of the Family Law Act 1975 (Cth) (“the Act”). Section 43 reads:
(1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;
(c)the need to protect the rights of children and to promote their welfare;
(ca)the need to ensure safety from family violence; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.
(2)Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.
Section 43 requires a court to have regard to a number of matters and not just the need to preserve and protect the institution of marriage. Ironically, I have as much, if not more concern, about the second of the five factors. However, I am not in a position to make any finding about any of those matters having regard to the state of the evidence. It must be kept in mind that this is an interim hearing and I am endeavouring to determine the matter on the papers without the evidence being tested.
I could not find on the basis of the assertions of the husband that the case guardian has an interest in these proceedings which is adverse to the interest of the wife. The case guardian has become an applicant as well seeking parenting orders along with the wife. There is no evidence upon which I could rely to indicate that the case guardian is desirous of keeping the child for herself for any improper or inappropriate reason, nor to exclude the husband from the life of the child. I am not prepared to endeavour to interpret what the wife’s statement means.
The second of the two complaints of the husband revolves around the words in Rule 6.09 “fairly and competently”. However, those words relate to the conduct of the case for the wife not for the Court nor for the husband and wife generally. “Fairly” means acting in a way which is free from bias, dishonesty or injustice. There is little doubt that the case guardian has a poor view of the conduct of the husband. Whether that is justified is a matter for a trial judge to determine when the evidence is properly tested. A significant dispute which I cannot determine is whether the husband still has a significant drug problem which in the normal course of events may militate against him having the responsibilities of parenthood. The husband’s view is that any drug problem that he has had had in the past is now gone and he has a responsible employment position in Singapore. In my view, the responsibility of the case guardian is to act fairly towards the wife and in a competent way. That must mean the case guardian takes into account what is best for the wife from a subjective point of view knowing all of the facts. It would be absurd for example, if a litigant without a case guardian was required to act without bias because each litigant sees their case through their own subjective eyes.
Accordingly, the case guardian’s strident views about the husband are not indicative of someone acting in a biased way contrary to the interests of the wife even though they may indicate a dislike of the husband. In reality, Rule 6.09(c) adds little to the statement in Rule 6.09(b) which has stood the test of time and which is clearly understood.
Albeit that the order was made on an ex parte basis, I do not see any reason to discharge it.
Parenting orders
On 28 October 2008, the case guardian filed an application seeking final orders that the child live with the wife. At the same time, she filed an application seeking interim orders that the child live with both she and the wife.
On 17 November 2008, the husband filed a response to the case guardian’s application simply seeking to have the application dismissed. That is, he did not seek parenting orders.
On 28 January 2009, the husband’s response to the application in a case together with his outline filed for the discrete hearing before Benjamin J said that if the Court found favour with the case guardian’s argument on the forum issue then on an interim basis, an order should be made that the child live with him.
On 4 February 2009, the husband filed his application in a court in Singapore seeking “sole custody, care and control” of the child but also that it be supervised by the paternal grandmother.
The case guardian seeks an order that the husband return the child to Australia. Having regard to the interim finding I am making hereafter, it is appropriate to make an order for the husband to arrange the return of the child. The jurisdiction to make that particular order is canvassed below (see Sampson and Hartnett No 10 [2007] FamCA 1365).
An interim hearing is expected to be an abridged process. It is an inquiry very much intended as a “holding pattern” pending a comprehensive examination of, and the testing of, each party’s proposals and the evidence presented. It is designed to cover a short term period in which children have an opportunity to settle into routines after what has often been a tumultuous and distressing breakdown of parental relationships. Subject to a consideration of the criteria in s 60CC, it is important to give children the security of an on-going relationship with both parents.
In this case, there has been no endeavour by the husband or his family to reunite the child with her mother on any form of basis let alone an interim one. Despite my acceptance of the husband’s wish to live in Singapore and his maintenance of the view that there is some form of conspiratorial attempt by the wife’s mother to keep him from the wife, he has made no attempt to foster the relationship of mother and child for what should be a limited but critical period in the child’s development.
In addition, notwithstanding this supposedly truncated proceeding, each party filed a number of affidavits that traversed virtually every aspect and angle of the short life of this child. Much of that evidence is contentious but also unhelpful in an abridged hearing.
To add to the complications, each party’s lawyer filed long written submissions also traversing the contentious facts. There were almost 200 pages of submissions alone. Despite this truncated hearing, I have tried to piece all of the pieces together whilst focussing on the urgent issue. I do not intend any criticism of the lawyers but simply state the reality. In this case, the legal issues are complicated.
The law
Section 60B sets out the objects of Part VII and the principles underlying it. Section 60B(1) says:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. (My emphasis).
Section 60B(2) says:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture). (My emphasis).
Section 60CA requires a court to regard the best interests of the child as the paramount consideration. In determining what is in the best interests of a child, the court must consider the matters set out in s 60CC(2) and (3) together with the extent to which the parents have involved themselves in the life of the child as described in s 60CC(4) and (4A).
In Goode and Goode (2006) FLC 93-286, the Full Court expanded on the meaning of the various parts of Division VII but also laid down the process to be followed in an interim hearing. What the Full Court said was:
43.Thus, in summary, when making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (s 61DA(2)) or, when making an interim order, the Court does not consider application of the presumption appropriate (s 61DA(3)). The presumption may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s 61DA(4)).
44.The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time”.
…
65.In summary, the amendments to Part VII have the following effect:
…
(5) When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
…
68.…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
70.…While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.
…
72.In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
73.That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A).
74.We also acknowledge that, because of the circumscribed nature of the proceedings, the reasons given at an interim hearing may be brief. So too, the filing of lengthy affidavits is unlikely to be helpful where the Court is unable to make findings about disputed facts.
…
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
I shall turn to follow the pathway directed by the Full Court but it is clear that the fundamental principles of concern are those in s 60B(1)(a) and (c) and s 60(2)(a), (b) and (c).
The husband applies for parenting orders in Singapore
After the determination by Benjamin J, the husband filed an originating summons in the High Court of the Republic of Singapore. I have set out above what orders he sought. He filed an affidavit in support of that application and for my purposes, the relevant paragraphs are set out as follows:
12.On 15 April 2008, my Mother came back to Australia at my mother-in-law’s insistence as we were badly short-handed and I was suffering from depression and fatigue over [the wife’s] state. I found it very difficult to cope with [the wife’s] deteriorated state as well as my responsibilities as a new father. I felt torn between caring for the [the child] and caring for [the wife].
13.I felt as if no one was there for me and I admit that my emotions were very unstable then. Furthermore, my earning capacity was uncertain and I felt greatly disadvantaged and alone. I resorted to escapism by turning back to the drugs which [the wife] and I occasionally experimented with in our courting days. However I have been drug free since my return to Singapore and I am now fully cleansed from any drug dependence.
…
38I verily believe that [the wife] and I should be together as husband and wife to care for [the child] together. I feel that it will be a betrayal of [the wife’s] love and faith in me to allow my mother-in-law to split the both of us up, [the wife’s] fears that I would be separated from her would be realised and my promises to stay in the marriage with her despite her incapacity will ring hollow.
39.I am therefore opposing my mother-in-law’s application to become [the wife’s] permanent Guardian at VCAT tribunal and her attempts to wrestle [the child] back in the Australian Family Court. I oppose it simply because there is no marriage breakdown. My lawyers have informed the Australian Court that we will be taking out these current guardianship proceedings in the Family Court of Singapore.
40.While I do not dispute that [the wife] must be able to parent [the child] and play a part in [the child’s] life, I am fiercely against anyone who seeks to destroy our marriage and our family. I am angry and disappointed with my mother-in-law. It has been so difficult to overcome each of our personal obstacles and setbacks, without external influences trying to further wear us down.
41I can honestly say that I have had to focus all my energies into rebuilding our lives, by overcoming my depression, as well as helping [the wife] on her road to recovery. My spirit has been greatly crushed by the ill-intent of my mother-in-law.
…
43.I feel that it will not be in [the child’s] welfare and interest at this stage to be uprooted and summarily returned to Australia. I cannot reside permanently in Australia as I need to keep my job in Singapore. It will be a terrible blow for both of us to be separated from me and I feel that it is unhealthy for me to live apart from her. [The wife] has told me that she wishes for us to be together as a happy family, with [the child] of course.
…
46.I beg this Honourable Court to allow me to continue to take care of [the child] under supervision of my mother. Please do not take [the child] away from me. I will do everything I can in Australia to procure the return of [the wife] to my side as my wife, so that she can return to Singapore with me and we can once again be a complete family.
47.Although it is not in the purview of this Honourable Court to deal with the affairs of [the wife], l realise that [the child’s] welfare is tied to [the wife’s] welfare and continued care. I am willing to make all our family available to the Ministry Of Community Youth and Sports (MCYS) welfare officers so that they can monitor [the child] and [the wife’s] progress to allay any fears that either of them are not well cared for.
The husband’s statements to the court in Singapore are matters that I have taken into account in this determination.
The case guardian’s affidavit
The case guardian said that after the wedding of the husband and wife she had a talk with the husband’s father about the husband’s drug use. His father wanted the husband to stay with the paternal grandmother in Canada and undergo drug rehabilitation. She said that the wife wanted to go overseas to help the husband with his drug problem. This was prior to the birth of the child.
Upon the wife becoming pregnant, having regard to her neurological condition, she was advised against having the baby but was adamant about doing so. The wife subsequently went with the husband to Singapore and according to the case guardian, said that she wanted to return to Australia because the whole family was fighting and it distressed her. It appears that in December 2007, both husband and wife returned from Singapore and came to live with the case guardian. According to the case guardian, there were fights between husband and wife over the use of drugs and the wife’s Centrelink entitlements. Not long after those arguments, the husband began a rehabilitation program at a medical centre.
In March 2008, the child was born but the following day, substantial strokes occurred and the wife was placed in intensive care.
After the birth of the child, the paternal grandmother came to Australia. There is a significant dispute between the parties as to each other’s involvement in the care of the child. At that time, the wife was substantially disabled from so caring for the child. The dispute as to the amount of time that the paternal grandmother was in Australia will no doubt be resolved by evidence from the relevant immigration department but at this stage I am not able to make any finding as to the early involvement of the paternal grandmother.
There is also significant dispute between the parties as to the nature and quantum of the husband’s drug usage but I find even on his evidence, it was a problem. The extent of the impact of the problem remains to be seen and will no doubt be the subject of considerable cross-examination.
Because of the wife’s disability, there was considerable involvement with the Department of Human Services and ultimately the Victorian Civil and Administrative Tribunal (VCAT) as a consequence of which, the case guardian was appointed to care for the financial affairs of the wife.
It appears common ground that in April 2008, a family meeting occurred involving the case guardian and the husband’s parents. Each party views the purpose of the meeting differently. The case guardian said that it was suggested that the husband and wife move to Singapore so that the husband could go into rehabilitation for his drug usage. There is a significant dispute between the parties as to the time that the arrangement in Singapore was to cover. The case guardian says it was for three months but the husband and his parents describe a much longer and more permanent arrangement. In my view, that is a subject that will no doubt be canvassed in great detail in the future but for my purposes, it matters little.
The case guardian said she was concerned about the wife’s welfare in Singapore bearing in mind the medical treatment that she was undergoing in Melbourne but she was reassured by the paternal grandmother that the wife would be cared for in Singapore as the paternal grandmother was going to be moving there as well from Canada. According to the case guardian, the wife’s Melbourne neurologist Dr T arranged for an appropriate neurologist and hospital support in Singapore.
In June 2008, all parties travelled to Singapore.
The case guardian said that having left the wife in Singapore, she returned to Australia but subsequently when she returned to Singapore, she found the wife “continually distressed” and in a bad state of health. That was only months after travelling to Singapore in the first place.
In her trip to Singapore in September 2008, the case guardian said that the wife was very upset not wanting to stay in Singapore. She complained about the paternal grandparents interfering in the child’s care and removing the child from her. All of this is significantly disputed.
According to the case guardian, she suggested that husband and wife and the child go on a holiday in Thailand with her and an arrangement was made including the booking of airline tickets which coincided with the expiry of the wife’s temporary visa. Bearing in mind the significant dispute between the parties about the duration of the time to be spent in Singapore arising out of the “agreement”, it strikes me as odd that there would be such a visa problem. That tends to suggest that the case guardian’s version of why the parties were going to Singapore in the first place as being more probable.
When the time came for the trip to be undertaken to Singapore, according to the case guardian, the paternal grandparents refused to allow the child to leave. That in turn caused the parties to miss the flight to Thailand as the wife did not want to leave without the child.
According to the case guardian, bearing in mind the visa problem, she took the wife to Malaysia and Thailand intending to return to Singapore. According to the case guardian it was at that point in time that the wife said she wanted to go back to Australia and cease the relationship with the husband. Consequently, the case guardian returned the wife to Melbourne asserting that no medical check-up had occurred in Singapore.
Senior counsel for the husband referred me to Annexure “G” of the affidavit of the case guardian filed 17 November 2008 which is a report from Dr T to the wife’s general medical practitioner dated 2 October 2008. Dr T noted that the wife was “managed” by a professor from the national neuroscience institute and received physiotherapy and speech pathology input. Furthermore, in a letter dated 23 October 2008 (Annexure “C” to the affidavit of Dr T) Dr T told the solicitors for the case guardian that she had referred the wife to a neurologist in Singapore at the National Neuroscience Institute/Singapore General Hospital.
In neither letter does Dr T indicate what treatment, if any, was undertaken. There is clearly a difference between a referral and treatment actually taking place as would possibly be inferred from the letter to the general practitioner from Dr T.
The husband provided as an annexure to his affidavit of November 2008, a letter signed by an occupational therapist who said that the wife was seen twice a week. He also produced an appointment book for a meeting with the neurologist in Singapore in July. Other appointments were made but I have no evidence of the level or quality of treatment. I could not therefore reject the case guardian’s account of her concern for the wife.
The husband was granted leave to file an affidavit on 17 February 2009 at the hearing before me and that was an opportunity for him to respond to the affidavit of the case guardian.
Most of the matters set out in the case guardian’s affidavit were responded to, but the husband was oddly silent on the question of what medical treatment the wife was having in Singapore. The husband also relied on an affidavit of his father filed the same day in which he directs his attention to a whole raft of matters but also makes no mention of what medical treatment the wife was having. In some detail, he refers to the way in which the wife had integrated into Singapore society. He said she was well and lovingly taken care of. That is at odds with the case guardian’s view.
Dr T is the consultant neurologist at N Hospital in Melbourne who has filed three affidavits. The most recent affidavit filed 3 February 2009 acknowledged having received an email from the Singaporean neurologist. To that extent therefore it must follow that the wife had some contact with a medical appointment in Singapore. According to Dr T, the neurologist in Singapore said that the wife’s illness was very uncommon in Singapore and he had not encountered anyone who had had it and become pregnant. At best therefore, it would seem that the wife’s involvement with medical practitioners relating to her neurological disorder in Singapore was limited. In the husband’s affidavit he also referred to an appointment on 8 September 2008 but whether that appointment was kept or not, is not clear. The husband in November said that he and his mother had been working towards getting the wife into an adult rehabilitation unit and that was only approved at the end of September 2008. In the list of expenses incurred by the wife, no reference was made to any payment for medical treatment after a July payment.
The case guardian said that in October 2008, the wife was missing the child and wanting to go back to Singapore. She alluded to the fact that the risk of a further stroke caused by distress was high. Accordingly, the wife was returned by the case guardian to Singapore at which point, she, the case guardian, said she was no longer welcome in the paternal grandparents’ home. She left the wife in Singapore and returned to Bangkok. She said she received a frantic call from the paternal grandfather who told her that the wife had made threats to kill herself and the child as a consequence of which the wife was to be taken to hospital. She said she had a conversation with the husband who confirmed similar problems. When the case guardian spoke to the wife, the wife was distressed. In his affidavit in response, the husband simply denied what the case guardian said. In other words, according to the husband there was no telephone call from the paternal grandfather nor the husband nor any distressed telephone discussion between the case guardian and the wife. The paternal grandfather was also oddly silent on that issue.
According to the case guardian, what consequently followed was that in a meeting between she and the wife, the wife said she wanted to return to Melbourne albeit it meant leaving the child behind. That is what happened. There is a significant dispute between the parties as to whether the removal of the wife to Melbourne from Singapore was a surreptitious exercise by the case guardian or whether the husband was aware of it and would not agree. In my view, it matters little at this point for the purposes of the interim hearing. That is a subject that will no doubt be canvassed in some detail in a final hearing. The husband asserts that he reported the wife’s unexplained disappearance to the Singaporean police. That evidence is so vague and uncorroborated that I have given it no weight.
The husband’s evidence
The husband confirmed that after the birth of the child, the wife had a series of seizures and was placed in intensive care. He said he could not imagine his life without his wife and the mother to the child and he became severely depressed. He then said that he called upon his mother to come from Canada to “support him”. In relation to that period, the husband’s own words described what happened. He said:
Regrettably, I did resort to drug usage at this time. This is something I deeply regret however I believe that I am over this now.
The husband annexed to his affidavit in November, a letter from his treating physician in Singapore who did not see the husband as a typical “hard core drug addict”. I am not sure what to infer from that statement but it is important to note that it was only on 11 November 2008. Is there a difference between a drug addict and a hard core one?
The thrust of the husband’s affidavit is that the wife is now captive to her mother, the case guardian. He makes clear that it is the wife’s intention to reconcile and that is being prevented by the case guardian. There is some support for that position. In an affidavit filed on 17 February 2009 on behalf of the husband by his solicitor, reference is made to a letter dated 13 February 2009 from the solicitors for the case guardian. The letter indicated that a Ms K who was engaged by VCAT to undertake a report relating to the wife, had confirmed that the wife did not wish to live in Singapore. The affidavit went on to say that the solicitor Ms Johal on behalf of the husband had spoken to Ms K and that the wife wished to be reunited with both the child and the husband.
There is nothing in the material filed by the husband that would convince me that the wife desires to reconcile with him alone. The statement to which I have just referred made by Ms K would tend to suggest the wife has a desire to be reunited with the child and the husband. If so, I join with Benjamin J in commenting that it is within the husband’s power to organise that. That is particularly so now that the husband has applied to the Singaporean court noting that his mother is not a party to the Singaporean proceedings.
The evidence of Dr T
On behalf of the case guardian, three affidavits were filed by Dr T. They were filed on 28 October 2008, 20 January 2009 and 3 February 2009. I have already referred to the third of those.
As at 28 October 2008, Dr T said that the wife would not have the level of comprehension, thinking and planning required for decision-making of a complex nature such as would be required relating to herself and the child. Dr T said that it would improve the wife’s medical outlook if the mother-baby bonding was secured and there was a loving, peaceful and stable home environment for the wife. She said that the opposite of those things was detrimental to the wife. In relation to the wife’s capacity to care for the child, the wife needed supervision by someone she trusted. Dr T ended her report by saying:
The requirement for supervision and assistance should not, however, diminish or detract support for [the wife’s] involvement in [the child’s] care as the development of secure mother-baby bonding and attachment is of paramount importance.
In the second affidavit filed 20 January 2009, Dr T noted that the wife continued to improve in relation to functional day-to-day capabilities. Importantly, Dr T noted that the wife was unable to fully reconcile the conflict present in a decision-making process and arrive at a decision with which she could be comfortable. I infer from that statement that caution is being expressed by Dr T in relation to statements made by the wife as to whether she wishes to be with the child or with the husband and the child. Having said that, Dr T indicated that the wife desired to be so reunited.
There have been supervised visits between husband and wife by a family access supervisor, a Ms C. The first meeting was on 17 December 2008. The meeting was tense and I can draw little inference from it. On 16 January 2009, another visit occurred between husband and wife over a number of hours. The only inference I can draw from the facts set out in the report are that it was unsuccessful in the sense of not being a calm or rational conversation and one at which the husband failed to comply with the rules and had to be removed. All of this according to the reporter, heightened the emotion of the wife. Ms C said that the husband disregarded the wife’s feelings and wishes. As an example, the wife raised the question about her new home including paint colours and details about the child’s room. This home is in Australia and the reporter indicated that the husband ignored the wife and responded with leading questions about the wife moving to Singapore with him.
Whilst I can understand the husband’s frustrations and perhaps even his desire to return to Singapore, these visits were organised under the auspices of VCAT. The only inference I can draw is that the husband did not think about the welfare of the wife. His behaviour was consistent with adopting a position that there was no negotiation on the subject of where the child and the wife would live and that he would make unilateral decisions. Having regard to his limited involvement in the child’s life and his own application in Singapore to have his custody supervised by his mother, the only conclusion I can draw is that his interests do not lie in reuniting the family at all but more importantly, those interests do not necessarily lie with the child.
Dr T’s third affidavit ended with a statement as follows:
I believe that it is important for [the wife] to have continuity of care in relation to her medical treatment and to her ongoing multi-disciplinary rehabilitation program in Australia.
There was no evidence of a continuity of care in Singapore. There is evidence of the wife being distressed by what was happening in Singapore. There is now evidence that the wife is desirous of being reunited with the husband and the child but in Australia. There is clear evidence that the husband has no intention of fulfilling that plan.
Dr T said that the multi-disciplinary rehabilitation had been organised at the Hospital and that it had already moved from hospital-based treatment to therapy at home and in the community setting.
Dr T’s evidence focuses on the welfare of the wife. It is the function of this Court under the Act to look at a decision in which the best interests of the child are paramount. Whilst the best interests may be paramount, they are not the only consideration. Dr T was certainly of the view that the mother-baby bonding was important and I conclude that that is for both mother and child. The dilemma is that I am uncertain exactly where the husband fits in to any parenting regime on the basis that he acknowledges having employment in Singapore and passing the responsibility for at least supervision of his care of the child to his mother. Whilst the evidence presented by the husband points to the fact that he has made significant steps forward to overcome his drug problem as well as the issue of depression, I could not be satisfied on the evidence presented to me that the difficulties have simply gone away. On the husband’s own evidence, he is still receiving treatment for what appears to be drug addiction. That, combined with his outburst in front of Ms C enables me to find that his interests do not necessarily lie in what is in the best interests of the child.
Applying the principles in Goode, I have canvassed the various steps to be undertaken in relation to an interim hearing. This is extremely difficult having regard to the truncated nature of the hearing. It is more so in this case where there are factual disputes of some significance most of which will have some impact upon the credibility of each of the persons involved.
The dichotomy however seems clear. If the child remains in Singapore, at least at this stage, it is unlikely that she will have any time with her mother if the medical regime contemplated by Dr T is to be implemented in its fullest extent. Having regard to the paucity of evidence about what medical treatment is available in Singapore together with a very strong and uncomfortable feeling about the evidence of what happened in Singapore, I could not find that there is a prospect of any developing relationship between mother and child. Conversely, if the parties were all in Australia, the depth of the relationship between the husband and the wife could be examined and an expert assessment made whether it is really a family unit that the wife desires and can manage or whether it is simply her desire to be caring for the child in the absence of the husband. I am not convinced that the husband’s professed desire to work in Singapore ought to be an impediment to him remaining in Australia nor that any drug rehabilitation issue would preclude him from remaining here either.
Submissions of the parties
I cannot do justice to the submissions by setting them out in detail nor should I in this truncated interim hearing. I have read them all but will highlight only those which I have found helpful in respect of the parenting issues.
Case Guardian’s submissions
The case guardian submitted:
(a)the husband and his parents had been acting in concert, actively frustrating the return of the child to Australia;
(b)the husband knew the level of stress caused to the wife by separation from the child, continues to aggravate the wife’s condition by non-compliance with a court order;
(c)the husband did not attempt to engage in any action whatsoever in Singapore to enforce his rights as a parent against his own parents to in turn arrange for the child to be returned to Australia in compliance with the exparte orders;
(d)the husband has been and remains a drug addict who is not capable of being the child’s primary carer;
(e)the husband and his parents have not looked after the child or the wife properly;
(f)the case guardian was appointed to administer the wife’s financial affairs by the Victorian Civil and Administrative Tribunal over the husband’s opposition, a decision that he had not appealed;
(g)the husband and the wife moved to Singapore in June 2008 to stay with the husband’s family and there is a dispute between the parties as to whether that was a long-term arrangement or for drug rehabilitation for the husband;
(h)the case guardian was the principle carer of the child in Australia; and
(i)the wife’s competence and ability to make lifestyle decisions for herself and her ability to understand and consistently communicate her wishes and needs is currently the subject of an investigation by the Office of Public Advocate in Victoria and the wife may not be in a position to make decisions for herself and the child.
Whilst I have carefully noted the submissions and in particular, the way in which they have drawn my attention to the evidence of both parties, it is to the evidence itself that I have turned and made what I could of it having regard to its limited nature.
The submissions canvassed each of the factors requiring consideration under s 60CC. I will not repeat them here.
The husband’s submissions
(a)there should be as much contact between the wife and the child as is reasonably practicable and the wife can readily return to Singapore;
(b)the child has resided continuously in the care of the husband’s mother since June 2008 and the wife was only able to assist in a minimal fashion up until October 2008. There are limitation on the wife’s ability to care for the child;
(c)there is no evidence advanced by the case guardian as to the quality of her own relationship with the child and her proposals for the future care of the child are scant and unclear;
(d)the Full Court in Goode (2006) FLC 93-286 and Keach (2007) FLC 93-353 determined that instead of simply preserving a status quo or well-settled environment, unless there are protective or significant best interest concerns for the child, the court must follow the structure of the Act;
(e)the child was well settled in Singapore and there was an established status quo and a continuation of that regime with the husband’s mother was in the child’s best interests. The husband’s mother had been the primary carer and principal attachment for all of the child’s life and that any abrupt cessation of that primary attachment, would be disturbing, distressing and frightening for the child; and
(f)there is compelling evidence of the love and care provided to the child by the husband and his family.
I repeat what I earlier said about using the submissions as a guide to the evidence itself.
In that setting, I turn to the factors set out in s 60CC of the Act.
I find that unless the child is in Australia, on the evidence, there is no prospect of any meaningful relationship occurring between mother and child. Section 60CC(2)(a) sets out that it is a primary consideration that a child benefit from such a relationship. The child is not benefiting from any relationship with her mother at the moment. Clearly as well, the child is not benefiting from having any relationship with her father whilst he remains in Australia pursuant to the restraining orders of this Court. The best way that I can see a proposal working in the child’s interests is if both parties are here.
I reject the proposition that the husband is being held as some sort of hostage and that consequently, the Court is preventing him from enabling the child to have a meaningful relationship with him. To have a meaningful relationship with both parents is important and at least on an interim basis, that control is in the husband’s hands.
Section 60CC(2)(b) sets out that a court is obliged to consider whatever is necessary to avoid a child being exposed to physical or psychological harm of the type referred to in the section. As I have indicated, I am not able to make any finding about the nature of the relationship between the husband and the wife during the short period of time in Singapore nor about what the child witnessed and/or understood. The husband’s recent behaviour at the supervised meeting leaves me with the impression of a frustrated and angry young man. There is therefore a ring of reality about the statement in the material of the case guardian that the wife was frightened in Singapore. Whilst that evidence needs to be tested and a thorough examination undertaken about the nature of the relationship between the husband and the wife, on the material before me, I have serious concerns about the child being exposed to the husband’s behaviour.
Section 60CC(3) sets out the additional considerations. The child is too young to have a view about her position.
There is little information about the relationship between the child and each of her parents. There is evidence of a significant involvement of the paternal grandmother in the child’s life. That must be so having regard to the fact that all other persons are in Australia. However, in this critical time in the child’s development, it is important that the relationship of both husband and wife with the child be fostered. Again, the only basis I can find on the evidence is that such development will only occur in Australia.
I have no understanding of what would happen if the child remained in Singapore other than what the husband has said to the Singaporean court. He said that the wife “may assist in the care of [the child]” supervised by him. In his affidavit he said of the wife’s involvement that weekends and evenings were typically spent with the wife and the child bonding with everyone. He said that the wife did not quite realise how delicate the child was as a result of which his mother had to remind her to be careful.
Importantly, he said he did not dispute that the wife must be able to parent the child and play a part in the child’s life. He confidently espoused that he was fiercely against anyone who sought to destroy his marriage and his family. He said he was angry and disappointed with his mother-in-law. That seems consistent with what I have set out above. Accordingly, even the husband acknowledges the role that the wife must play in the child’s life.
The husband went on to say that he thought the wife was not in a position to take care of the child and that neither the case guardian or the wife had the time or capacity to care for the child. On the evidence, I could not find that to be the case.
Finally, the husband told the Singaporean court that he realised that the child’s welfare was tied to the wife’s welfare and continued care. That is a significant statement notwithstanding that the focus of s 60CA is predominately on the paramount interests of the child. The husband himself therefore seems to acknowledge that it is important for the wife to have a role in the life of the child.
Because no evidence has been provided, I do not know how the child would cope with being away from the paternal grandmother let alone the husband or the wife. It is important that that issue be addressed by an expert as soon as possible. Because of both the husband the wife being in Australia, the child’s being reunited with them would enable an opportunity for that evidence to be obtained. The paternal grandmother has obviously had a significant role in the child’s life. There is no evidence of why the paternal grandmother could not come to Australia at least on an interim basis to enable the husband and wife to be settled and for the child’s development to be re-established in their lives. The paternal grandmother had lived in Canada and visited Australia and moved to Singapore. It seems sensible therefore for the paternal grandmother to have a significant role in assisting both the husband and the wife here in Australia.
I accept on the evidence of Dr T that the wife’s health dictates that it is in her interest to be in Australia and therefore unlikely that the wife could live in Singapore at this time.
I have contemplated the capacity of each of the parents to provide care for the child. I have already indicated that both parents seem to need some assistance in their capacity to care for the child particularly as the husband has indicated a desire to be engaged in employment. The evidence in relation to the wife’s capacity is that she is improving but will need ongoing assistance. The case guardian has indicated a desire to fulfil that role. However, the capacity of either parent to care for the child alone is something which needs to be comprehensively examined and for that purpose, the appropriate place for it to occur is Australia.
As for the husband’s attitude to parenting, notwithstanding what he has espoused in his affidavit material both here and in Singapore, I remain sceptical about his approach as well as his statement that he has now overcome the drug and depression issues.
When I balance each of those factors, the most fundamental question is the one relating to the child having a meaningful relationship with both parents. In those circumstances, it is appropriate that the child live with the wife and the case guardian initially and for the question of the husband’s role in the child’s life to be quickly assessed by all of the relevant professionals in Australia. If it be that the husband and wife desire to reconcile, the various professionals involved in the wife’s life pursuant to the VCAT order can have some involvement to assist in working out just what she means when she talks of a reunited family.
The presumption
Section 61DA provides that when making a parenting order, a court must apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility. That presumption may be rebutted pursuant to s 61DA(4) on the basis of evidence satisfying the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.
In this case, based on what I have set out earlier, it would not be in the best interests of the child for the parents to have equal shared parental responsibility at this time. The husband appears on the evidence to have adopted a unilateral and domineering role about which those under state law who are responsible for her care, have expressed concern. His behaviour has heightened the stress levels of the wife and that is completely at odds with the professional medical advice of Dr T. Any discussion therefore in relation to decisions about the child’s future could not at this stage, be made jointly in that environment. It would not therefore be in the best interests of the child for the parents to have equal shared parental responsibility for the purposes of s 61DA.
An independent children’s lawyer
This is a case that is a significant dispute between not only two parents but also their extended family members. Each professes to have the best interests of the child at heart. However, on any view, there is now an intractable conflict. No person therefore is entirely focussed on the interests of the child. This is a clear case where a children’s representative must be appointed.
This is also a case in which a comprehensive examination of the future proposals of each party must be examined in accordance with Division 12A of the Act. I propose to order that subject to the return of the child to Australia, the matter be dealt with with some considerable priority.
The injunctions
Howsoever the application by the Case Guardian relating to the husband’s father is framed, it seeks an injunction against him.
The order was made on an ex parte basis and, as senior counsel for the father loudly protested, without any undertaking as to damages. The evidentiary basis for the order can be seen in the affidavit of the Case Guardian at paragraph 2 in which she said that if the father left Australia, enforcing any parenting orders would be made difficult.
The evidence presented in respect of the application for the injunction against the husband’s father was:
(a)the matter should proceed ex parte because if given notice, the husband’s father would depart Australia making it all the more difficult to enforce orders; and
(b)the husband and his parents had refused to return the child to Australia.
The Case Guardian’s position was that the husband’s father was complicit in refusing to return the child to Australia.
In his reasons for judgement, the Senior Registrar said in addition to reading the affidavit material, there was “correspondence” between solicitors and the husband had said that he had made requests of his parents to comply with the earlier orders and that he could do nothing more and could not compel them to comply.
The Senior Registrar said that the application was brought pursuant to s 68B(1) of the Act. That is presumably what he was told.
The Senior Registrar’s attention was drawn to a decision of mine named Wilson [2008] FamCA 903. I have to say that I do not see the relevance of that decision.
It is clear therefore that the Senior Registrar did not doubt he had jurisdiction to make orders but he was proceeding on the basis of the power in s 68B.
Senior counsel for the husband’s father submitted, inter alia, the following matters:
(a)No submissions had been made by or on behalf of the Case Guardian as to the legal basis upon which the injunction was sought or should be maintained;
(b)Division 9 of the Act dealt with proceedings for injunctions in relation to children;
(c)Notwithstanding its ostensibly wide terms, s 68B did not give power to the Court to make orders against third parties and the authority for that proposition was Minister for Immigration and Multicultural Affairs and Indigenous Affairs v B (2004) FLC 174;
(d)Even if the power existed, the Court ought not exercise its discretion because the injunction offered no practical assistance to the Court and would amount to “hostage taking”; and
(e)The Court could not make a finding of any capacity of the husband’s father to cause the child the child to travel to Australia.
Notwithstanding the Senior Registrar made orders against the husband’s father, it is important in every case to question whether the Court has jurisdiction to make the orders sought by a party. That is particularly so in cases where the application is made on an ex parte basis and then, upon the return of the order, there ought not be an assumption that the jurisdiction issue is not controversial. In this case therefore, the first question is whether there is any jurisdiction to make any such order against a person who is not a party to the marriage even though he may, by having been joined by the applicant, be a party to the proceedings.
Section 68B provides:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
It may be argued that the order sought is an injunction in relation to a child because the words “in relation to” have traditionally been given very wide meaning. In addition, the use of the word “including” must be read as not limiting the Court to the matters set out in sub paras (a) to (d) which in turn leaves the Court with a very wide discretion. As such, the fact that an injunction cannot be fashioned within the framework of the words in (a) to (d) does not matter. The problem is that what is sought is an injunction which restricts freedom of a person’s movement. That might be possible if the person pursued has the possession of a child but that is not the case here.
Senior Counsel for the husband’s father referred me to Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; 219 CLR 365. Gleeson CJ and McHugh J said that there were two specific issues under consideration. The first was whether there was jurisdiction to order a minister of the Crown to release children and the second was whether there was jurisdiction to make orders concerning the welfare of children held in immigration detention. This particular authority has to be seen in the light of the peculiar matter before the High Court. It must be remembered that in that case, the Full Court of the Family Court relied upon s 67ZC as the basis to hold that the welfare jurisdiction was not limited to disputes between parents concerning custody and access to children. The majority ( Nicholson CJ and O’Ryan J) held that where the welfare required it, the Court could make orders against third parties.
Gleeson CJ and McHugh J went initially to the question of jurisdiction and said (citations omitted):
….a central question in the appeal concerns the jurisdiction of the Family Court. Jurisdiction is a term used with a variety of meanings. It is often used to describe the amenability of the defendant to the reach of a court's process, which may be limited to certain subject matters or geographical locations. In a legal context the primary meaning of jurisdiction is “authority to decide”. It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction. Because the Family Court is a federal court created by the Parliament of the Commonwealth, its jurisdiction - its authority to decide - must be defined in accordance with ss 75, 76 and 77 of the Constitution.
After setting out that there had to be a “matter” within the meaning of ss 75, 76 and 77 of the Constitution, their Honours said:
(t)here can be no “matter” for the purpose of ss 75, 76 and 77 of the Constitution unless the relevant legislation identifies - expressly or inferentially - some right that may be determined or privilege that may be granted by a court, or some duty or liability that is enforceable against a person by another person. Most “matters” involve the determination of a duty or liability in one party and a correlative right or standing in another person to enforce the duty or liability. In some exceptional cases, however, a court may be given jurisdiction to make an order on the application of a person that will constitute a “matter” even though there is no lis inter partes or adjudication of rights. Orders concerning judicial advice to trustees or company liquidators, the administration of assets or the giving of consent to the marriage of a ward of the court are well-known exercises of judicial power and are therefore “matters” in this exceptional sense. The jurisdiction of the Family Court is confined constitutionally to “matters” in the senses described above.
Their Honours then examined s 67ZC of the Act and said that standing alone, it did not confer jurisdiction in respect of a "matter" arising under a law of the Parliament because it does not confer rights or impose duties on anyone.
Their Honours then looked elsewhere in Part VII for the power to make the orders sought and concluded:
As we have already indicated, Pt VII is concerned with children. Like Pt V, and despite the terms of s 31, Pt VII contains a number of conferrals of jurisdiction. None of them expressly indicates or inferentially suggests that the Family Court has jurisdiction to make orders against the Minister. On the contrary, the various Divisions and subdivisions of Pt VII show that the main object of the Part is to require parents to act in ways that will advance the best interests of their children. Indeed, s 60B(1) declares that the object of the Part is to:
“ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.”
Nor, when construed as a whole, does anything in Pt VII suggest that the Part was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.
Having looked at each division in Part VII, their Honours said that except where expressly mentioned, Part VII was concerned with proceedings between the parents of children and also with the obligations of parents to children. They added that the jurisdiction was found in Division 12 not in the injunction provisions which are in Division 9 nor in Division 8 where s 67ZC is found.
Other judges of the High Court also said that jurisdiction was found in Division 12. Gummow, Hayne and Heydon JJ said that
the provisions of subdiv F of Div 12, including ss 69ZE, 69ZG, 69ZH and 69ZJ, control the application of the preceding provisions of Pt VII.
Section 67ZC and s 68B must therefore be read in accordance with the limiting provisions of Division 12, particularly s 69ZH.
There is therefore nothing in s 67ZC or in Part VII to suggest that the Court has jurisdiction to make orders binding upon third parties where it would advance the welfare of a child. I therefore cannot read s 68B as a source of power to directly restrain the freedom of movement of a parent.
It follows therefore that the Registrar could not have made the orders on the basis of s 68B. But that is not the end of the matter.
The Full Court in Sampson & Hartnett (no. 10) had reservations about s 68B that in relation to a parent.
What power is therefore available to make any injunctive order relating to children whether as between parents or other persons relating to children’s matters and does it matter that the applicant pursued an order only based upon s 68B?
The answer to the second question must be “no” on the basis that Division 12A of the Act permits a court to make an order notwithstanding it may not have been specifically sought by the parties. The Court is not bound by the proposals of the parties and that must include the statutory basis upon which the parties considered themselves conducting the proceedings.
The other relevant area relating to injunctions within the Act lies in s 114.
Section 114(1) refers to proceedings of the kind described in sub-para (e) of the definition of matrimonial cause in s 4 but that focuses on proceedings between the parties to a marriage. The order sought here relates to a person joined to the proceedings who is not a party to the marriage.
Section 114(3) provides:
(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Section 114(3) is not confined to parties to a marriage.
In Sampson, the Full Court contemplated the power to order, by injunction, a parent to move to a particular location as an issue in a parenting case. Their Honours said:
Perhaps obviously, in a parenting issues 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. As we will later discuss, even before the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the 2006 Act”), a court in a parenting case was not confined in respect of orders, to the proposals of the parties. The 2006 Act enshrines that proposition, by obliging the court to consider certain arrangements for a child.
Getting a child back to Australia after making a parenting order would clearly be seen as “closely connected” with the orders and as the Full Court then went on to say:
As to the court’s power to make coercive orders and the propriety of making such orders, section 65D provides:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and section 65DAB (parenting plans) and this division, make such parenting orders as it thinks proper. (emphasis added)
As to the “coercive” power, the Full Court said:
As indicated earlier, the purpose of a “coercive” order is more to create a situation, rather than choose between situations that already exist. This distinction raises the basic question of the extent to which orders need to be connected to the evidence in a case.
The Full Court ultimately decided that there was power in s 114(3) to enjoin a parent from relocating or to relocate but with the proviso that the injunction was no more than necessary to secure the best interests of a child. Their Honours described the “proper exercise” of such a power as likely to be rarely used and gave examples of why that might be so.
The problem here is different in that the coercive power sought to be exercised is the restraint on an individual’s freedom to leave Australia, which is not his home, on the basis that, as the child’s paternal grandfather, his retention might assist in or precipitate the return of the child.
Is s 114(3) wide enough to cover that situation?
In LSH; Ex parte RTF [1987] HCA 53; (1987) 164 CLR 91, the High Court of Australia looked at the Family Court’s power in relation to third parties. In that case, an injunction was sought against a party to a marriage and her new husband to restrain them from pursuing an adoption of a child of the marriage. The High Court looked at s 114 and Mason CJ said:
It is now well settled that in some circumstances the Family Court has power to make an order or an injunction directed to a third party or which will indirectly affect the position of a third party. On the other hand, an order will not be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which he or she would not otherwise be liable to perform: Ascot Investments Pty. Ltd. v. Harper (1981) 148 CLR 337, at pp 354-355; The Queen v. Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185, at pp 200-202. In the first of these cases Gibbs C.J. pointed out (at p 354) that:
“... it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties.”
Mason CJ noted that Gibb CJ said that if s 114 operated to prejudice third parties, it may be necessary to consider its Constitutional validity. His Honour went on to say:
But in some matters, as, for example, questions relating to the custody of, and access to, a child of a marriage, the making of an order against a third party may be essential to the protection and enforcement of the rights and interests of the parties to a marriage or either of them. As I pointed out in The Queen v. Lambert; Ex parte Plummer[1980] HCA 52; (1980) 146 CLR 447, at p 466:
“It is of the essence of an award of custody, as with the father's right to custody under the old common law, that it may be enforced against strangers to the marriage. Where custody is awarded to one parent, though it is awarded as against the other parent, it is enforceable against others.”
Subsequently in In the Marriage of Cormick[1984] HCA 79; (1984) 156 CLR 170, Gibbs C.J. (with whom Wilson, Deane, Dawson and I agreed) observed (at p.176) that:
“... the law defines the rights of the parties to the marriage to the custody and guardianship of a child of the marriage, not only as between themselves, or between them and the child, but also as against other persons.”
Mason CJ then said:
It follows that neither as a matter of constitutional power nor as a matter of interpretation of s.114(3) is there any reason for denying to the Family Court power to grant an injunction against a third party by way of ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act.
In Cardile v Led Builders Pty Ltd [1999] HCA 18; 198 CLR 380, a case involving orders relating to asset protection, the High Court of Australia discussed the relevant Federal Court of Australia legislation as follows (citations omitted):
The power of the Federal Court of Australia to make orders to preserve assets affected by litigation is principally found in s 23 of the Act.. That section reads:
“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”
Section 5(2) of the Act is also relevant. It provides that the Federal Court “is a superior court of record and is a court of law and equity”. These two provisions afford express powers to the Federal Court. But they also give rise to implied powers, for example to prevent abuse of the process of the Court. Occasionally, it has been suggested that the Federal Court (and the Family Court of Australia) enjoy “inherent” powers. However, because such courts are created by statute (and not, for example, out of the royal prerogative) the better view is that their powers must be found in the express language of enabling statutes or in implications necessarily derived from such provisions. When regard is had to s 23 of the Act, its great breadth is immediately obvious. The power is granted “in relation to” matters. Those are words of the widest connection. The power is not confined to the making of orders “in” matters. It is sufficient that there be a relevant connection between the matter and the order in question. When the scope of the orders and their “kinds” are considered, it is left to the Federal Court to make orders of such “kinds” as it thinks “appropriate”. The word “appropriate” has outer boundaries. It suggests a limitation derived from legal authority, principle and policy. However, the scope of those boundaries is not narrow. Its breadth is addressed not simply to the “orders” appropriate to the particular case but to the “kinds” of orders, ie the variety and classes of orders which the Court may devise.
The words in s 114 of the Act are similar to those in s 5 of the Federal Court of Australia Act 1976 (Cth). The question is whether there is a relevant connection between a matter, which in this case is the dispute between the husband and the wife over the parenting issues associated with the child, and the order to be made against the husband’s father. Is there anything in Part VII or any other provision in the Family Law Act about restraining persons who are not parents “in relation to” children? Is the order sought against the husband’s father, ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act ?
The two questions just asked provide different answers. In respect of the first question, the power seems to be clearly there but is there sufficient evidence to then apply the other considerations required for the making of an injunction under s. 114? In relation to the first point, the High Court made its views clear in The Queen v Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447 and in In the Marriage of Cormick [1984] HCA 79; (1984) 156 CLR 170.
In addition to the authorities, the Act makes clear that enforcement of orders is a matter not restricted to parents. For example, in s 70NAC, the following appears:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b) otherwise--he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAC contemplates not just “parents” but “persons” and the intention of the legislation is clear that orders affecting children are to be treated seriously including by persons who are not parents. For a person to do otherwise could invoke the sanctions for aiding and abetting a contravention.
To enable me to find that the order sought against the husband’s father is ancillary relief for the purposes of protecting a parent’s entitlement under a parenting order, I would need to be satisfied that the evidence showed that the parenting order is enforceable against others. To put it another way, it is necessary to establish that the husband’s father is able to positively influence the implementation of the parenting order. If the evidence does not reach that standard, the injunctive order has no connection with the matter between the parents and must be seen to be outside of the power of the Court. That is so because the Act only permits orders to be made which are appropriate. The language of s 114(3) is very wide and the Court must have the powers necessary to enable it to act effectively within its jurisdiction but there must be some connection with the orders.
In this case, the evidence in the affidavit of the Case Guardian at paragraph 2 acknowledges that enforcement of the parenting order without the husband’s father present would be difficult but there is no evidence to show how he could influence the implementation of the order if he so wished. I am conscious that I am not dealing with an issue arising out of s 70NAC but rather an injunction which restricts freedom of movement.
I am very conscious also of what the Kirby J said in Thomas v Mowbray [2007] HCA 33 (citations omitted):
International law, ratified by and binding on Australia, protects the rights of individuals to be free of arbitrary detention and the unlawful deprivation of liberty. International law also safeguards individual rights to privacy and respect for family life.; to freedom of expression and association; to freedom of movement; and to a fair hearing in the determination of one's rights and obligations. Clearly, the “obligations, prohibitions and restrictions” that might be imposed by an order made under s 104.4 of the Code will potentially infringe any, or all, of these rights.
The foregoing principles of international law have not been incorporated by municipal law into federal law in this country. However, that does not mean that the principles are irrelevant to the functions of the courts. An Australian statute must be interpreted and applied, as far as its language admits, so as not to be inconsistent with established rules of international law. This Court will also refuse to uphold legislation that abrogates fundamental rights, recognised by civilised countries, unless the purpose of the legislature is clear, evidenced by unambiguous and unmistakable language. These principles are not just aspirational statements. This was made clear by Gleeson CJ in Al-Kateb v Godwin:
“A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.”
In those circumstances, there was and is no evidence to justify the order being made against the husband’s father and it is consequentially discharged forthwith.
The position of the husband is an entirely different matter.
On 28 October 2008, the Senior Registrar, again on an ex parte basis, ordered that pending the return of the child to Australia, the husband be restrained by injunction from departing Australia.
As I understand the evidence, the husband was not then in Australia but did subsequently return here and the injunction has remained and remains alive.
On 17 November 2008, the husband filed a response to the Case Guardian’s application. In that document, he sought that the orders of 28 October 2008 be discharged.
The Senior Registrar made the order on the basis of the affidavit presented to him. There is nothing of substance in the reasons for judgment about the basis upon which the Senior Registrar was determining the matter.
Having regard to my earlier remarks about jurisdiction, I repeat that I have no concerns about the capacity of the Court to make the order which it has made.
Each party has filed controversial material. There are many things about which I cannot and should not, make any findings. That is for a trial judge to do on the tested evidence.
Much obviously depends upon the question of where the child should live on an interim basis. I have already determined that above.
The husband’s case is:
(a)he was aware of the injunction at the time he entered Australia after October 2008;
(b)the injunctions have no “utility” and do not advance the best interests of the child;
(c)no attempt has been made to enforce the October orders;
(d)the evidence upon which the injunction was based was “incomplete” and “false”; and
(e)the orders have temporarily disrupted and fragmented a family unit.
If the husband was aware of the existence of the injunctions, I see no reason why I should adopt any other view than that he was submitting to the jurisdiction of the Court.
The power to restrain the husband is not determined by what is in the best interests of the child. Section 114 is a discretionary provision which requires me to contemplate whether it is proper with respect to the proceedings to which the order relates. In this case, I am satisfied that it is proper to make the order for the reasons that follow.
The husband raises the question of what is in the child’s best interests and asserts that the family has been fragmented but for the reasons I have already set out, I cannot determine the factual dispute as to why the parties went to Singapore, for how long or what occurred there. If the husband has the best interests of the child at heart, I am perplexed why he does not return the child to Australia which I have found is the best place for the mother and child to have any, let alone any meaningful, relationship. If the husband does wish to reconcile with the wife, and at the moment I am unsure of that, the most logical place is for that to be undertaken here.
As for the argument that the injunctions were based on incomplete evidence, the Senior Registrar acknowledged in his reasons that that may have been the case but in respect of the truth or otherwise of the evidence of each side, I am unable to make any findings other than those to which I have earlier mentioned.
The husband said in his submissions that the Case Guardian had not taken steps to enforce the order. Whilst that may be correct, Senior Counsel for the Case Guardian indicated to me that that issue would be considered immediately after my determination.
The considerations justifying the injunction are:
(a)the husband has expressed a desire to live in Singapore;
(b)The child is in Singapore;
(c)The husband has employment in Singapore;
(d)The husband has now commenced parenting proceedings in Singapore.
To the extent that it is relevant as to whether or not the Senior Registrar should have granted the injunction on an ex parte basis, the test which should have been applied is set out in the decision of the High Court in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57. There, Gummow and Hayne JJ said:
The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries, and continued:
The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the court continued, in a statement of central importance for this appeal:
How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.
Gummow and Hayne JJ said:
However, a difference between this court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff’s claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is “[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried”. That was followed by a proposition which appears to reverse matters of onus:
So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. [Emphasis added]
Those statements do not accord with the doctrine in this court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.
In my view, the Senior Registrar applied the test appropriately on the basis of the evidence before him.
In the same way, I am being asked to make an interlocutory injunction against the husband which should continue until trial. On that basis, the same two tests should be applied. Unlike the Senior Registrar, I have had much more evidence presented to me, input from the husband and submissions from both sides.
I am satisfied that as between the Case Guardian and the wife on the one hand as applicants and the husband on the other as respondent, noting that the husband’s mother is not seeking to care for the child with the husband in Australia, there must be a probability that the wife and her mother will succeed. That must be said on the basis that the husband’s own Singaporean case is that it will not be he alone who will be caring for the child. His parenting is to be supervised by his mother. That is not something that he contemplates here in Australia.
The second question is whether the wife and the Case Guardian would suffer the inconvenience to their case if the injunction were not granted. Having regard to the husband’s now stated position that he will not reside in Australia and there has been no endeavour to return the child to Australia to reunite her with both husband and wife, I can only conclude that if the injunction were not granted, the husband would not return the child to Australia and would not permit the wife to have any relationship with the child outside of Singapore.
There are therefore a number of reasons to keep the husband in Australia to ensure compliance with the Court’s orders particularly as the husband has not provided any evidence to show that he has endeavoured to comply with the orders thus far.
Undertakings as to damages
As the injunctions in relation to the husband’s father will be discharged, I will say nothing further about whether or not it was appropriate for the Senior Registrar to seek any undertaking from the case guardian. In respect of the husband however, the injunction will remain.
Senior counsel for the husband referred to the Full Court decision in Blue Seas Investments Pty Ltd v Mitchell and MacGillivray (1999) FLC 92-856 which was also addressed by senior counsel for the case guardian. Each agreed that that authority picked up the traditional view that in ordinary civil litigation, an undertaking as to damages is required to be given in all save exceptional cases. There was some debate between the parties as to whether in fact the husband and his father had sought an undertaking as to damages. I accept that application has been made by the husband. Senior counsel for the husband said that the failure of the case guardian to offer an undertaking militated strongly against the grant of the injunction.
The case guardian’s submission drew my attention to the fact that the Full Court in Blue Seas Investments questioned whether the principles in ordinary civil litigation were appropriate where one of the parties may be economically dominant over the other. Those cases however all relate to financial issues. An undertaking as to damages is designed to compensate someone who suffers financial loss as a consequence of the court relying upon untested evidence to restrain them from going about their normal business. That is not the case here.
There are two reasons why it would be inappropriate here to require the case guardian to give an undertaking as to damages. First, these are parenting proceedings where the focus of the court must be on the best interests of a child. The welfare of a child is the paramount but not the only consideration but on any view, the child’s welfare must override any financial impediment imposed on the husband. I am not aware of what problem of a financial nature the husband may suffer other than I understand that he had a job in Singapore. The second reason is that an undertaking as to damages, although a statutory order that can be made under s 68B or s 114 of the Act, it has its origins in equity. Section 68B and s 114 both indicate that orders should only be made where it is proper to do so. That is the same concept as followed by equity. It has always been a fundamental tenet of equity that a person seeking a remedy has to come with clean hands. Having accepted that the case guardian has acted properly, I would find that on the limited evidence I have, she has clean hands. On the basis that the husband has not endeavoured to my satisfaction, to comply with the order to return the child to Australia, he does not have clean hands. For the husband therefore to pursue an order for an undertaking for damages, is inappropriate.
It is therefore proper to make the order sought.
I certify that the preceding One Hundred and Eight Six (186) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin
Associate:
Date: 1 April 2009
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