Zahawi & Rayne

[2016] FamCAFC 90

FAMILY COURT OF AUSTRALIA

ZAHAWI & RAYNE [2016] FamCAFC 90

FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where the father seeks to relocate the children to Dubai – where the father was the “unchallenged custodian” of the children – where the trial judge found that a move to Dubai would deprive the children of developing a strong relationship with the mother – where the trial judge found that the mother was unable to visit the children in Dubai and that there was no guarantee that any Australian orders could be enforced in Dubai – whether the trial judge examined the relevant s 60CC considerations – whether the trial judge failed to consider a relevant consideration – whether the appellant was afforded procedural fairness – where no error established – appeal dismissed – each party bear their own costs.

Family Law Act 1975 (Cth) s 60CC

AMS v AIF (1999) 199 CLR 160

F & B [2000] FamCA 676
J & B [2005] FamCA 1154
Nash v Nash [1973] 2 All ER 704
Poel v Poel [1970] 1 WLR 1469
Tyler v Tyler [1989] 2 FLR (UK) 158
U v U (2002) 211 CLR 238

APPELLANT: Mr Zahawi

RESPONDENT: Ms Rayne

INDEPENDENT CHILDREN’S LAWYER: Ms Ebejer

FILE NUMBER: MLC 8142 of 2012

APPEAL NUMBER: SOA 77 of 2015

DATE DELIVERED: 3 June 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Thackray, Murphy & Austin JJ

HEARING DATE: 11 May 2016

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 13 November 2015

LOWER COURT MNC: [2015] FamCA 1003

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hutchins

SOLICITOR FOR THE APPELLANT: Lander & Rogers

SOLICITOR FOR THE RESPONDENT: Allan McMonnies

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: No Appearance

Orders

1. The appeal be dismissed.

2. Each party bear their own costs of and incidental to the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zahawi & Rayne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 77 of 2015
File Number: MLC 8142 of 2012

Mr Zahawi

Appellant

And

Ms Rayne

Respondent

REASONS FOR JUDGMENT

1. The effect of orders made by Stevenson J on 13 November 2015 is that the father of two children, then aged six and four, is precluded from relocating those children to live with him in Dubai without the mother’s consent. The father appeals those orders. 

2. Her Honour also ordered that the children have what can be described as “graduated time” with their mother, commencing with four weeks of a period of five hours and increasing over time until the commencement of the 2016 school year.  At that point, the children were to spend time with the mother from after school Friday until 5.00 pm Sunday each alternate weekend and each Wednesday from after school until 7.00 pm. In addition, time was ordered to occur for one half of school holidays during the year, alternating weeks in the Christmas school holidays.

3. There is no appeal from her Honour’s order that the father has “sole parental responsibility” for the children. That order was based on a finding, also not otherwise the subject of challenge, that the parties’ conflict and “level of distrust … is of such an intensity that they would be unable to share parental responsibility” (at [72]).

4. The appellant father contends centrally that the trial judge erred in failing to consider or adequately consider “the advantages of the [father’s] proposal to relocate the children to Dubai”. To similar effect, error is also contended as an asserted failure “to consider the competing proposals of the parties”.[1]   Reframed in the language of discretionary error, it is contended that her Honour failed to take account of relevant considerations or, perhaps, took account of irrelevant considerations. Conformably with those challenges, it is also asserted that her Honour’s reasons were inadequate.[2] 

   [1]Grounds 1 and 2 respectively.

   [2]Ground 6.

The Parties’ Proposals At Trial

1. Each of the parties, including the Independent Children’s Lawyer (“ICL”) contended for orders before her Honour that were said to meet the best interests of these children in the event that relocation of the children was permitted or if it was not. That resulted in the need for the trial judge to examine a number of alternative proposals measured against the criterion of the best interests of the child.  If none of those proposals met that criterion, the trial judge was, subject to procedural fairness considerations, obliged to craft such orders for herself.[3] 

   [3]See, for example, AMS v AIF (1999) 199 CLR 160, at 191–194.

2. The mother’s proposal included an order that “after 6 months a Family Report be prepared and the matter listed to consider the mother’s application that the children live with her”. Her Honour rejected that part of the mother’s proposal.  The proposition inherent in that proposal is that the mother could not contend successfully that it was in the best interests of the children to live with her at that time. Her Honour’s finding in that respect, and indeed ultimately, is to the same effect. Those findings are not challenged.

3. As a consequence of those findings, her Honour’s consideration of the orders that best met the best interests of the children proceeded from the premise that the children would live with the father (and his wife and her children) whatever else be the outcome of the parties’ competing proposals. 

4. In the event that the children were ordered to remain in Australia, the father would make plans to return to Australia. There could be little doubt that not only was that contrary to what the father wished for himself, the children, and his broader family constellation, but it would also embrace significant disadvantages for him and the family. He anticipated that it would take him twelve months or more to obtain employment. That assertion had support from his unchallenged evidence about the difficulties he had in obtaining employment over a period of about nine months prior to accepting his existing position in Dubai. The move back to Australia would, then, potentially come at a consequent significant financial cost.

5. Until he could arrange a move back to Australia, the father proposed that the children would continue living in Australia with his wife and her children.  Inherent in the trial judge’s rejection of the mother’s case that the children reside with her is the acceptance of that proposal. The father proposed, in that event, the children see their mother for graduating periods of time leading to time each alternate weekend from 10.00 am Saturday until 6.00 pm Sunday each alternate weekend and, again following a period of graduation, one week in each school holiday period.  Skype and other such “electronic time” three times per week was also proposed.

6. If the children were permitted to live in Dubai with the father (and his wife and her children) the father proposed time between the children and the mother in both Dubai and Australia. The former gave rise to an assertion by the mother that she could not exercise time in Dubai.  As will shortly be seen, her Honour accepted that contention.  The father’s proposal for face-to-face time between the children and their mother in Australia was for three weeks each year – two weeks from 1 July (the Dubai summer school break) and one week in December.  He proposed delivering the children to, and collecting them from, the mother.  Again, regular “electronic time” was proposed.

7. The proposals of the mother and the ICL were similar. Each contended that the children should remain living in Melbourne. The ICL contended that this should occur despite, in that event, the children not living with the mother.

8. In the event that the children remained in Australia, the ICL proposed that the children spend graduating time with the mother, culminating from the end of 2015 in spending time from after school Friday until 5.00 pm Sunday and each Wednesday night after school until 7.00 pm.  In addition, from 2016 onwards, it was proposed that school holidays be shared equally between the parents.  The mother’s proposals were identical save for, relevantly, seeking additional time when the children were at martial arts classes.

9. In the event that the children lived in Dubai, the ICL proposed, relevantly, that the mother spend time with the children for three school holiday periods each year for a total of five weeks (10 days during the spring break; two weeks in July/August and 10 days in December/January).  The ICL also proposed that the father deposit a bond of $30,000 to a solicitor’s trust account so as to ensure compliance with the orders. For the mother’s part, if the children were permitted to live in Dubai, she proposed a total of ten weeks with the children each year, all in Australia (three weeks from 20 December to 10 January; two weeks from 27 March to 10 April and approximately five weeks from 23 June to 28 August).  She sought the father pay a bond of $250,000 to secure compliance.[4]

   [4]          Applicant Wife’s Proposed Minute, at paragraphs 5 and 9.

Uncontroversial Background Facts

1. The mother was primarily responsible for the care of the children until the parties separated in August 2012.  At that time, the children were aged four years and 16 months, respectively. Upon separation, the mother moved to be with her parents in Country E.  The children remained in Australia with their father.

2. There was little or no face-to-face contact between the mother and the children in the approximate 13 months that the mother remained in Country E and “communication was … very limited” (at [13]). The mother returned to Australia in September 2013, after which time, as her Honour found, the father refused to permit unsupervised time with the children and “the children continued to have contact with her on a very limited basis” (at [14]).

3. In October 2013 the father married his present wife. She has two children whose ages are about the same as the parties’ children.  The father, his wife and the four children lived together as a family unit for about two years until August 2015 when the father moved to Dubai to undertake a management position there.  He had been made redundant from his employment in November 2014 and had made over 25 job applications in this country before accepting the position in Dubai. 

4. After the father moved to Dubai, the children, his wife and her children remained living together in Australia.

The Narrow Parameters of the Dispute

1. The decision confronting her Honour, although exquisitely difficult, was nevertheless made within narrow parameters formed by facts which were uncontroversial and findings made by her Honour which are not challenged on this appeal.  In short, the advantages for the children in a move to Dubai were plainly obvious and essentially unchallenged, as were the disadvantages for the children in not being permitted to move.

2. In J & B,[5] the Full Court referred with approval to what was said in F & B:[6]

   109.…Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration…

   [5][2005] FamCA 1154.

   [6][2000] FamCA 676.

3. The passage refers to the statutory predecessor of what is now s 60CC but what was said there remains equally true of the current section, and to the current iteration of the Family Law Act 1975 (Cth) (“the Act”) more broadly. The statement is all the more true in the instant case because of the narrow parameters of this case. The considerations just referred to are important in assessing the arguments on behalf of the father in this appeal.

4. Before dealing with those arguments in detail, it is first necessary to outline the unchallenged facts and findings within which her Honour’s decision was made.

The Children’s Relationships and Nurturing

1. As we have said, the father was, by reason of the finding made by her Honour in respect of the mother’s “live with” application, effectively the unchallenged “custodian” of the children.[7] That circumstance, and the fact that the children had been living with the father for about three years before he left for Dubai (and with him, his wife and her two children for about two of those three years), was plainly a very important consideration. As will be seen, considerable reliance is placed upon it by counsel for the appellant father.

   [7]As that expression is used in AMS v AIF (above), and, similarly, in U v U (2002) 211 CLR 238.

2. Of equal importance, her Honour found that the environment within which the children had been cared for, and were being cared for subsequent to the father’s move to Dubai, was entirely loving and met their needs. It was also an environment for which the children – albeit noting their ages and maturity – had expressed a preference.

3. Her Honour accepted the opinion of the family consultant who had prepared two family reports that “the children have a much more secure relationship with the father than is the case with the mother” and that the children “described a relationship with their father that was stable and secure” (at [45]).

4. Equally, her Honour accepted the family consultant’s opinion that “the children have a comfortable and secure relationship with” the father’s wife and “appear secure and confident in the care of [her] and they impressed as having achieved stability in her care which has aided them in their growth and development … [the children] have settled into a blended family of four children and hav[e] developed significant relationships [with the other two children]” (at [52]).

5. Her Honour concluded that “the father and [his wife] have established a stable and secure family unit within which the children have a clear identification” (at [76]).  Equally, and with respect unsurprisingly, her Honour also found (at [68]) that the father’s wife was “struggl[ing] to cope in the absence of the father, as she described in her … evidence”.

6. After the mother left for Country E, the father assumed the primary care of two young children. He did so within a context where the mother saw little or nothing of the children nor communicated substantively with them when in Country E and had irregular supervised time with them in the approximately two years between her return to Australia and the trial.

7. A regime of graduated unsupervised time between the children and their mother commenced with orders made by the trial judge at the end of the hearing and pending delivery of the reasons. By the commencement of the 2016 school year, the orders for time saw the mother seeing the children from after school Friday until 5.00 pm Sunday each alternate weekend; from after school Wednesday until the commencement of school Thursday in every other week; as well as half school holidays.

8. At the time of the preparation of the first report by the family consultant in June 2015, the father was contemplating pursuing employment in Sydney. The family consultant opined that “it is in the children’s best interest that they remain in Melbourne for at least the next two years to enable them to continue to strengthen their relationship with their mother”. The family consultant’s subsequent report included an opinion, accepted by her Honour, that “[i]t is important the children’s relationship with their mother be enhanced by time spent in her care”.  She also recommended that “should [the father] remain in Australia the children spend regular and frequent unsupervised time with their mother on alternate weekends and during the school holidays”.[8]

   [8]Quoted in the reasons, at [46] and [47].

9. The family consultant also opined more generally that “the children have an important connection with their mother” and her Honour said “I accept readily her recommendation that the children’s relationship with her should be continued and strengthened by regular face-to-face interaction” (at [48]).

10. Importantly, her Honour found specifically that “the development of the children’s relationship with the mother is a significant consideration in the outcome of these proceedings” and a move to Dubai would deprive the children “of the best opportunity to develop a strong parental relationship with the mother” and the move would render it “impossible for them to spend regular face-to-face time with her, as was considered very important by the Family Consultant”.[9]

    [9]Quoted in the reasons, at [48] and [53], respectively.

11. Her Honour found specifically that “[t]he proposed relocation to Dubai would carry very significant ramifications for the children” (at [53]). Again, that finding is not challenged.

The Mother Cannot Visit the Children in Dubai

1. Her Honour found that “the mother would feel uncomfortable and unsafe as a single woman in Dubai to an extent which means that she would not travel to that country even if the children live there with the father” (at [56]).  Effectively, her Honour found as a result that the mother was unable to visit the children in Dubai.

2. The mother’s concern results, in part, from her experiences in that country (at a time when the parties lived there) when she reported to the police an incident of being “physically assaulted” by the father. The mother’s evidence was that the “police laughed at her” when she was reporting the incident over the phone. She said that the police asked her to pass the phone to the father and “[t]he father was laughing on the phone with the officer and I could hear laughing on the other side of the phone”. Her Honour records that “[t]he father conceded in cross-examination that he may have ‘giggled’ with the police while he spoke to them on this occasion” (at [54]–[56]).

3. The consequence of her Honour’s findings is that if the children were to live in Dubai, any face-to-face time between the mother and the children would need to occur, as the parties each otherwise proposed, in Australia.

4. Those findings are not challenged on this appeal.

The Father’s Willingness to Promote Time Between the Mother and Children

1. It was not suggested that the father’s acceptance of a position in Dubai was anything other than the pursuit of a legitimate means by which he could best provide for the children and his broader family. The attempts by the father to find work in Australia over a period of about nine months after being made redundant has already been referred to.

2. It was not suggested that the father has not, or necessarily would not, comply with court orders, noting that, as will be seen, her Honour had real concerns as to the efficacy of any orders made by her within Dubai.

3. However, the father does not challenge on this appeal her Honour’s findings that she was “not persuaded that the father would make sustained efforts to facilitate the children’s relationship with the mother if they live with him in Dubai” and the finding that “[h]istory demonstrates that he is capable of adopting a very restrictive stance with regard to the children’s relationship with the mother” (at [80]). Her Honour found that if the father were to “take a similar attitude” if the children lived in Dubai, “there is no guarantee that the mother could enforce any orders of this court” (at [80]).

The Enforceability in Dubai of Australian Orders for Time

1. Her Honour relied upon evidence adduced by the father to the effect that issues relevant to “personal status matters such as marriage, custody of children” were dealt with by Sharia courts in Dubai.

1. Her Honour found that an Australian order for, relevantly, time between the children and their mother “could be registered and enforced in Dubai, provided that it ‘must not conflict with public order or morals … or … an order already made in the same matter in Dubai’”. Her Honour concluded that “it thus appears that enforcement of any orders which I would make would be a matter for the discretion of a court in Dubai” (at [64]).

2. Those matters are reinforced by the finding, also unchallenged, that the United Arab Emirates is not a signatory to the Hague Convention on child abduction and that “the protections of that covenant are unavailable to the mother in terms of the relationship between the children and herself” (at [81]).

The Appellant’s Central Argument – Grounds 1, 2 And 6

1. Understandably in light of the findings made by her Honour earlier referred to, counsel for the father sought to place particular reliance upon what was said about the position of “unchallenged custodians” in U v U,[10] and in particular what was said by Kirby J in referring to decisions of courts of appeal in Canada and England. Conformably with what had been said by the High Court in AMS that a parent seeking to relocate with children need not show “compelling reasons” for the relocation,[11] the Justices in the later decision of U v U,  and in particular Kirby J, referred to long-standing English authority, the  emphasis of which can be seen in what Sachs LJ said in Poel v Poel:[12]

   …The way in which the parent who properly has custody of a child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear.

[10](2002) 211 CLR 238.

[11]AMS v AIF (above), at 191.

[12][1970] 1 WLR 1469, at 1473; sub nom P v P [1970] 3 All ER 659, at 662, cited by Kirby J in U v U (above), at [152].

1. As Kirby J also points out, that central proposition has been reinforced by curial statements to the effect that, for example:

   [W]hen one parent has been given custody it is a very strong thing for this court to make an order which will prevent the following of a chosen career by the parent who has custody.[13]

   and:

   [T]his line of authority shows that where the custodial parent herself, it was the mother in all those cases, has a genuine and reasonable desire to emigrate then the court should hesitate long before refusing permission to take the children.[14]

   [13]Nash v Nash [1973] 2 All ER 704, at 706, cited by Kirby J in U v U (above), at [153].

   [14]Tyler v Tyler [1989] 2 FLR (UK) 158, at 161, cited by Kirby J in U v U (above), at [155].

2. His Honour went on to say:[15]

   This Court, and other courts of Australia, are not bound by the decisions of foreign courts on this or any other subject.  However, where (as here) Australian legislation has substantially followed a precedent in English legislation, it is obviously sensible to take into account the course of judicial authority in that country dealing with the same legislation.  So much was acknowledged in AMS, where the decision in Poel was examined in my reasons with which, on the decisive point, Gleeson CJ, McHugh and Gummow JJ agreed.

   [15]U v U (above), at [148] (footnotes omitted).

3. However, as his Honour was also anxious to point out, and as is clear from the terms of the Act itself, the application of those propositions does not give rise to any presumption or additional onus. Rather, they posit the acute issues as to the best interests of the children within legitimate parental expectations and desires consequent upon marriage breakdown and the need to construct lives for parents and children consequent thereto.

4. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests.  What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

   …The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents:  obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[16]

   [16]         U v U (above), at [92].

5. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests.  However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation.[17] And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

   [17]See, for example, the comments of Kirby J in AMS v AIF (above), at [77]–[78].

6. Here, the father’s position as, effectively, the unchallenged “custodian” for the children was a powerfully important factor and should have been productive of her Honour “not lightly interfer[ing]” with the children’s existing nurturing environment and “hesitat[ing] long” before making the order which she did.  The difficulty for the appellant, to our mind, is that her Honour’s reasons reveal that she did in fact “hesitate long” and was acutely aware of the existing situation pointing to permitting the children to be relocated.

7. While it is contended that her Honour did not refer to the asserted advantageous living circumstances in Dubai to which the father deposed, and so much is true, those advantages were not gainsaid. Nor, in light of her Honour’s central finding as to the parent with whom the children should live, was the advantage of maintaining the existing living arrangements gainsaid. 

8. The nub of the acutely difficult decision for her Honour did not lie in the contended advantages for the children in living with their father (and step- mother and step-siblings), it lay in her Honour’s determination that the children needed more time with, and a greater face-to-face relationship with, their mother than what the father’s proposals could provide.  The central advantages for the children lay in that relationship being fostered, developed and maintained. 

9. That central finding is matched by its opposite:  the central disadvantage for the children lay in not being able to foster, develop and maintain the relationship with their mother that their best interests required if they live in Dubai. That finding resulted from findings unchallenged on the appeal as to the amount of time that could be availed of the mother in Dubai and, further, the potential difficulties that might in any event attend that time.

10. Similarly, we do not consider that it can reasonably be said that her Honour was unaware of the disadvantages for the father of returning to Melbourne and the consequent disadvantages for the children. True it is that the trial judge did not list those disadvantages but, again, they were plainly obvious and could not reasonably be, and were not, gainsaid.  Her Honour’s central finding, plainly evident in our view from her reasons, is that those disadvantages, significant though they were, were outweighed by the advantages to the children, at their particular ages and stages of development, of having the opportunity to foster, develop and maintain a relationship with their mother.

11. In further support of his arguments, counsel for the father asserted that her Honour’s reasons do not exhibit an analysis of all of the relevant s 60CC considerations. We consider, with respect, that this argument is in truth a “rebadging” of the same central argument to which we have just referred. We consider that her Honour’s reasons exhibit a sufficient examination of the relevant considerations.  That conclusion results, again, from the narrow ambit of the factual disputes necessary to be determined by her Honour as is evidenced by the unchallenged findings on this appeal which we have earlier set out.

12. In truth, and with respect to the careful arguments of counsel for the appellant father, the argument is in essence that her Honour ought to have given more weight to the maintenance of an existing nurturing environment and the advantages to the family of moving to Dubai (and disadvantages for the father in returning to Australia) than what she did and less weight to the benefit for the children in fostering, developing and maintaining a relationship with their mother.  Other judges may not have reached the same decision as her Honour, but we are not persuaded that her Honour erred in reaching the decision that she did.

13. The consequence is that grounds 1 and 2 are not made out. It will also be evident from what we have said that we consider her Honour’s reasons are adequate to illuminate the path which led to her ultimate conclusion and to explain adequately the basis for that decision.

14. Grounds 1, 2 and 6 fail. 

The Evidence of Ms L – Ground 3

1. The appellant contends that her Honour erred by “failing to consider” the evidence of Ms L, a psychologist who had seen the elder child shortly after the parties separated, or that her Honour placed “insufficient weight” on that evidence.  It is said that the evidence had particular relevance because “Ms [L] reported disclosures by the child [B] of family violence perpetrated by the mother”. Her Honour’s reasons record that the father relied on an affidavit from Ms L but the reasons do not otherwise refer to her evidence. 

2. It cannot in our view be contended that her Honour did not “consider” that evidence.  In that respect, not only does her Honour explicitly make it clear that the affidavit was before her and read, but the family consultant had also included it among the material and observations which informed her opinions upon which her Honour relied. However, her Honour’s failure to otherwise mention the evidence should lead to the conclusion that her Honour accorded it no weight and, at least in that sense, did not take it into account in arriving at her decision.

3. Whether that sounds in error as a failure to take account of a relevant consideration requires an assessment of the potential relevance and probative force of the evidence by reference to the issues before her Honour. 

4. The evidence of Ms L, although said to be “a report”, consists of a letter exhibited to an affidavit which does not add substantively to the contents of the letter.  Otherwise:

   ·The letter refers to observations and conversations emanating from four visits occurring consequent upon separation and the mother’s departure from the children’s lives;

   ·Those observations and conversations occurred some three years prior to trial;

   ·The observations and conversations were with only one of the two children who was aged four at that time;

   ·The children were taken to Ms L by their father and no information or input was obtained from the mother; and

   ·To the extent that a statement is recorded by a four year old, it is the statement of a child who is suffering the loss of the parent who, until that time, had been a constant part of his life.

5. In addition, the second of two family reports contained reference to (unchallenged) opinions from Ms P (a speech pathologist) and Dr R (a psychologist) obtained subsequent to Ms L’s consultations but which bear significantly upon what was said by the child whom she saw:

   [B] was diagnosed in 2014 by Ms [P] speech pathologist as having a specific language impairment with accompanying anxiety and attention control issues.  Dr [R], clinical psychologist, in 2013 identified [B] has significant difficulties communicating and his ‘general thinking and reasoning skills are in the borderline range, and are significantly below that of his peers’.[18]

   [18]         Family Report of Ms L, 2 September 2015, at paragraph 13.

1. Ms L makes no mention of the child’s language impairment or the impairment in his “general thinking and reasoning skills” in recording what was said by the then four-year-old B.

2. Further and in any event, by reason of the narrow ambit of the dispute before her Honour, the evidence of Ms L had limited potential relevance and probative force by reason of the true nature and limited ambit of the issues before her Honour central to a determination of the children’s best interests.   That is, of course, all the more so when account is taken of the fact that the father contended that, in the event that the children moved to Dubai, they should spend block periods of unsupervised time with their mother in Australia. 

3. By reference to the issues central to her Honour’s determination and the nature and extent of the evidence of Ms L, we are not persuaded that the failure to accord any weight to that evidence amounts to her Honour failing to consider a relevant consideration. In the circumstances of this case, and in light of other evidence before her Honour, the evidence was of marginal, if any, relevance and her Honour was in our view correct in paying it no mind.

4. Ground 3 fails.

Procedural Fairness – Ground 5

1. The appellant’s assertion of procedural unfairness arises from two propositions:  that the father was not given “the opportunity to make submissions in circumstances where [her Honour] was departing from the proposals of the parties” and that he was denied “the opportunity to make submissions in relation to the admission and use of Ms [L]’ [sic] evidence and notes”.

The Proposals

1. It is, of course, axiomatic as a general proposition that if a person’s interests are to be adversely affected by a decision, they should be given an opportunity to present evidence and make submissions in respect of it.[19]

   [19]See, for example, Allesch v Maunz (2000) 203 CLR 172 at [35], per Kirby J quoted by the appellant’s counsel.

2. Whether there has been a failure of procedural fairness in the manner asserted falls to be considered by reference to what each of the parties contended were the appropriate orders to be made (of which all other parties had notice) and the degree of departure from those orders by the trial judge. 

3. Contrary to what is inherent in the appellant’s assertion, her Honour’s orders essentially embraced the proposals of each of the mother and the ICL save that greater detail was provided in her Honour’s orders with respect to the period over which time would graduate. The substance of the time proposed by all parties, including the father was that time would initially graduate; it would ultimately involve overnight time; time would be unsupervised and holiday time would embrace block periods of time. 

4. We cannot see how the father was denied the opportunity to present his evidence and make such submissions as he might in respect of the nature and extent of the time between the children and their mother.

5. The father’s true complaint is, as it seems to us, that his proposals were not accepted by the trial judge, not that he was denied the opportunity to present his case in respect of the orders ultimately made by her Honour. Those orders varied only in their detail from those proposed by two of the three parties of which the father had notice and about which he made submissions.

The Evidence of Ms L

1. In respect of this challenge we repeat what we have earlier said: her Honour did in fact admit the evidence of Ms L but gave it no weight.

2. While the central contention in the written submissions on behalf of the appellant father is as we have earlier set out, the substance of the argument outlined later in the submissions refers not to the “admission and use” of the evidence but, rather, that the trial judge “did not afford the appellant the opportunity to be heard on the weight to be given” to that evidence. It is contended that when her Honour says of the evidence “[i]t’s untested evidence, I can’t place any weight on it”, her Honour “then stops [trial] counsel for the appellant” from further submitting in respect of the issue. We do not accept that this accurately reflects what in fact occurred.

3. After lunch on the first day of the trial, then counsel for the father notified her Honour that Ms L had a serious health issue, was “in hospital” and that “she won’t be available”. Counsel for the mother indicated shortly thereafter that he “would have to apply that the affidavit of [Ms L] be struck out if she’s not available for cross-examination”. Her Honour indicated that she would “worry about that when [it came] to submissions”.[20] At the conclusion of the evidence having referred to the fact the she intended to take written submissions, counsel for the father sought to tender Ms L’s notes. The following exchange took place:

   [20]Trial transcript, 9 September 2015, pp 53–54 respectively.

   HER HONOUR:        Does that complete the evidence, then?

   MR McCLUSKEY:  Yes, your Honour.

   MS DOWLER:         Yes, your Honour.

   HER HONOUR:        Anything further to be tendered?

   MR McCLUSKEY:   Your Honour, indicated you would like written submissions.  Is there a timetable for…     

   HER HONOUR:       Well, I was about to ask you to have a discussion among yourselves and agree on that.

   MR PATERSON:   Before we move on from tendering, your Honour, I would ask that the subpoenaed notes of Dr [L] [sic] which are in court at the moment, be tendered.

   MR McCLUSKEY:   I object to that, and your Honour previously indicated it should be a matter for submissions.

   HER HONOUR:       Yes.  If she’s not a witness then her affidavit and report are incapable of being tested; so are her notes.  They can be admitted but, of course, the weight that I could attach to them is extremely problematic.

   MR PATERSON:     It’s, in my submission, your Honour, the affidavit and those records contain pertinent evidence in relation to the children’s best interests in relation to      

   HER HONOUR:       It’s untested evidence.  I can’t place any weight on it.

   MR PATERSON:     If it please the court.

   HER HONOUR:       Right. So will I leave you to it to agree on a timetable?[21]

   [21]Trial transcript, 10 September 2015, pp 172–173.

4. Her Honour did not “stop” the father’s counsel from making submissions or, indeed, from doing anything else. The timetable in the passage from the transcript just extracted refers to each of the parties providing written submissions. Each of the parties was afforded the opportunity to make written submissions with respect to all matters asserted to be relevant to her Honour’s decision. Each did so. 

5. In the father’s case, that included his counsel making written submissions in respect of the weight to be attached to Ms L’s evidence. Counsel wrote:

   The father deposed in his trial affidavit that he has seen the mother hitting [B]. He received the advice of the child psychologist Ms [L] in January 2013 that “any re-introduction of spending time with the mother would need to be managed very carefully.” If Ms [L]’ [sic] affidavit material is inadmissible because her evidence could not be tested, the letter is nevertheless relevant evidence as it demonstrates the advice given to the father in January 2013 by a qualified psychologist who consulted [B].[22]

   [22]         Father’s Trial Submissions, 28 September 2015, p 3.

6. Her Honour did not rule the affidavit inadmissible (although, with respect, we do not see how “a demonstration of the advice given to the father” is logically probative of any issues confronting her Honour and, therefore, relevant). Even if relevant and admissible, the submission itself accords the evidence negligible weight in respect to any of the issues necessary to be determined by her Honour. 

1. Ms L’s affidavit is mentioned in one other place, later in counsel for the father’s written submissions:

   …The psychologist, [Ms L] has sworn an affidavit annexing a letter drafted by her where she reports that [B] disclosed that he witnessed the Mother hitting and yelling at the Father, and the Mother locked him in the garage as a punishment, causing him to feel fear. 

   Ms [L] was prepared to attend the hearing to give evidence but this became impossible due to a sudden and genuine health issue. In light of section 60B(1)(b) of the Act, where a principle underlying the Act is to protect children from physical or psychological harm, it is respectfully submitted that the Court should hesitate to strike out evidence of a child’s disclosures to a psychologist of abuse. In light of section 69ZT(3) it is respectfully submitted that the evidence should be permitted, though the Court will determine the weight given to that evidence.[23]

   [23]         Father’s Trial Submissions, 28 September 2015, p 5.

2. That passage refers explicitly to the weight to be attached to Ms L’s evidence, albeit by acknowledging that the attribution of weight was a matter for her Honour.

3. We are unable to see how it can be asserted reasonably that her Honour did not afford the appellant the opportunity to be heard on the weight to be given to the evidence. Not only did her Honour do so, submissions were in fact made.

4. Ground 5 fails.

Conclusion

1. The appellant abandoned ground 4.

2. Grounds 1, 2, 3, 5 and 6 fail. The appeal will be dismissed.

Costs

1. The appellant can be seen to have been wholly unsuccessful. However, we are mindful of the consequences of the trial decision, and this decision, for the father and his family, including the father’s need to return to Australia to find work. We are not persuaded that the circumstances of this case justify a departure from s 117(1) of the Act.

2. We will order that each party bear their own costs of and incidental to the appeal.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Austin JJ) delivered on 3 June 2016.

Associate: 

Date:  3 June 2016