Zanda & Zanda
[2014] FamCAFC 173
•15 September 2014
FAMILY COURT OF AUSTRALIA
| ZANDA & ZANDA | [2014] FamCAFC 173 |
| FAMILY LAW – APPEAL – APPREHENDED BIAS – Where the father submitted that the primary judge’s orders and reasons gave rise to an apprehension of bias and an apprehension that he prejudged the issues before him – Where the matter was initially considered ex parte – Where the father filed documents after ex parte orders were made – Where his Honour raised issues regarding the father’s citizenship and welfare entitlement that were not raised by the parties – Where the primary judge identified the appropriate law which did not suggest wrongdoing – Where the primary judge referred the matter to the Department of Immigration and Citizenship without informing the father’s counsel of this intention – Statements made by primary judge – Where objection to constitution of the court not taken – Waiver – Whether subsequent delivery of reasons revive bias – Whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Where a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the question – Appeal allowed. FAMILY LAW – APPEAL – FORUM – Appropriate forum –Where the children were residents of Lebanon – Whether the doctrine of forum non conveniens is applicable to a parenting case – Where an application is made under the provisions of the Act, which prescribes the best interests test, whether or not a child is within the jurisdiction then it is that test and not the test of forum non conveniens which will apply – Appeal allowed. |
FAMILY LAW – APPEAL – INJUNCTIONS – Jurisdiction – Where the father was restrained from leaving Australia – Whether the court has the power to directly restrain the freedom of movement of a parent – Whether the power can be found in s 114(3) or 68B – Where an order requiring a parent to live in a particular place is not a parenting order – Where 68B cannot restrict the movement of a parent – Where the court has discretion under s 114(3) to restrain the movement of a parent – Where exercise of the discretion requires the correct source of power to be identified – Appeal allowed.
Australian Citizenship Act 2007 (Cth): ss 21, 22
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996
| Family Law Act 1975 (Cth): ss 11F, 69E, 65D, 62G, 68B, 114 Social Security Act 1991 (Cth): s 500 |
| Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577 |
| APPELLANT: | Mr Zanda |
| RESPONDENT: | Ms Zanda |
| FILE NUMBER: | PAC | 1889 | of | 2014 |
| FIRST APPEAL NUMBER: | EA | 79 | of | 2014 |
| SECOND APPEAL NUMBER: | EA | 80 | of | 2014 |
| DATE DELIVERED: | 15 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace and Ryan JJ |
| HEARING DATE: | 17 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 April 2014 2 July 2014 |
| LOWER COURT MNC: | [2014] FCCA 1333 [2014] FCCA 1326 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Heazlewood |
| SOLICITOR FOR THE APPELLANT: | Elie Rahme & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Christie |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid NSW Bankstown Family Law |
Orders
Orders Made 17 July 2014
The appeal EA79 of 2014 be allowed in relation to orders 9 and 10 made by Judge Harman on 2 July 2014.
Orders 9 and 10 made by Judge Harman on 2 July 2014 be set aside.
Orders Made on 15 September 2014
The appeal EA 80 of 2014 against order 2 made by Judge Harman on 28 April 2014 be allowed, and subject to order 2 of these orders, order 2 of those orders be set aside.
Pending further order, there be an order in the same terms as order 2 of the orders made by Judge Harman on 28 April 2014 that:
2. That until further Order the respondent father [Mr Zanda] be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent’s name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent’s name on the Watch List until the Court orders its removal.
The appeal EA 79 of 2014 against orders made by Judge Harman on 2 July 2014 be allowed in relation to orders 2, 3, 4, 5, 8 and 16(b), and those orders be set aside.
The matter is remitted for hearing before a judge of the Federal Circuit Court other than Judge Harman.
That the Court grants to the appellant father a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zanda & Zanda 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 SYDNEY |
Appeal Numbers: EA 79 of 2014; EA 80 of 2014
File Number: PAC 1889 of 2014
| Mr Zanda |
Appellant
and
| Ms Zanda |
Respondent
REASONS FOR JUDGMENT
The father appeals from parenting and other orders made by Judge Harman in the Federal Circuit Court. On 28 April 2014 his Honour made ex parte orders which restrained the father from leaving Australia and further restrained him from removing four of the children of him and the mother from Australia. After an interim hearing conducted on 13 June 2014, on 2 July 2014, the judge made interim orders. We will return to the orders later but note that the orders of 2 July 2014 neither varied nor discharged the injunctions made on 28 April 2014.
By appeal EA 79 of 2014, the father appeals against the orders of 2 July 2014 and by EA 80 of 2014, he appeals against the orders made ex parte on
28 April 2014. Leave was given to the father to bring the appeal against the order of 28 April 2014 notwithstanding that the time for filing the appeal had expired. Further, procedural orders were made that both appeals be heard at the same time and that the hearing of the appeals be expedited.
Background
There are seven children of the parties’ relationship. They range in age from two years to twelve years of age. All children were born in Australia and each holds Australian citizenship. The parties agreed that their children should be born in Australia.
The mother was born in Australia in 1981. The father was born overseas in 1975 and holds Australian citizenship. Both are dual nationals.
At the time of the hearings before the judge, the three older children were overseas being cared for by the father’s family and the four younger children were in Australia with the mother.
The parties were introduced in 2001 and entered into a marriage which had been arranged by their relatives. They married and lived overseas together until the father obtained a visa to travel to Australia and, together, the father and the mother came to Australia in June 2001. They lived in Australia until March 2007 when the father, mother and their then four children travelled to Lebanon.
The father said that in 2006 he and the mother had a discussion in which it was decided that they would live in Lebanon and raise the family there. Consequently the father said that they found and purchased a flat and split their time between there and the paternal grandfather’s village. The father said he believed he could earn more money in Australia than he could in Lebanon and they decided to return to Australia from time to time to accumulate savings. It was the father’s case that he never intended to live permanently anywhere but Lebanon. Although not directly addressed in the mother’s affidavit, we accept that this may be a contentious issue. From 2007, the family travelled frequently between Lebanon and Australia and we now set out the family’s movements to understand the context of the matter before the primary judge.
In March 2007 the father, mother and their then four children, travelled to Lebanon. They remained there until 11 May 2007 when the father, mother and three of their children returned to Australia. Their daughter remained in Lebanon and, but for a period of two months spent in Australia, has lived in Lebanon ever since.
Between May 2007 and 20 August 2008, the parties lived in Australia with three of the children. A fifth child was born in Australia during this time.
On 20 August 2008 the mother travelled to Lebanon with the four children and returned to Australia on 16 November 2008 to ensure the continuation of her Centrelink benefit. She brought the two younger children with her to Australia. The other two children remained in Lebanon and they have lived there since then.
On 24 February 2009, the mother travelled to Lebanon returned to Australia on 23 April 2009 bringing three children with her.
On 16 August 2009, the father, mother and the three children who were in Australia returned to Lebanon where they remained until 24 September 2009. When the father and mother returned to Australia they brought the younger two children. The mother said that she returned because she needed to secure the continuation of her Centrelink benefit and to await the birth of another child who was born during this stay in Australia.
The parties remained in Australia until 16 December 2010 when the mother and these three children travelled to Lebanon. They remained there until 6 June 2011 when the mother and the youngest two children returned to Australia.
The mother and the youngest two children returned to Lebanon on 15 September 2011 and she lived there with all of the children until 12 March 2012 when she returned to Australia bringing her youngest daughter with her to await the birth of her seventh child.
The mother, and the two small children returned to Lebanon on 15 July 2012 where again they lived with the other children and the paternal grandmother. The father returned to Lebanon on 12 June 2013. On 24 March 2014 the mother and father returned to Australia with the youngest four children, ostensibly for a short period to enable the mother to have an operation in Australia.
When the parties and the four children arrived at Melbourne airport on
24 March 2014, the mother sought the assistance of the police saying that she was in need of protection from family violence from the father. That assistance was provided and the mother and four children left the airport without the father. It seems that the mother was living with relatives in Sydney at the time of the hearing before the judge.
During the parties’ absences from Lebanon, the three older children have been cared for by the paternal grandmother and members of the father’s family. When the parties or the mother and children were together in Lebanon, it appears that the paternal grandmother lived with them.
The three children who have been in overseas since 2008 attend a private school in Lebanon as did two of the children who came to Australia in March 2014.
The proceedings on 28 April 2014
On 24 April 2014 the mother filed an initiating application as well as an accompanying affidavit seeking orders that the four children in Australia live with her and that she have sole parental responsibility for them. She further sought orders that she and the father do all acts and things necessary to cause the older three children to be brought to live in Australia and, on that occurring, all seven children be prevented by order from being removed from Australia. The orders also sought to restrain the father from leaving Australia.
On 28 April 2014 the mother filed an application in a case seeking orders in the same terms as her initiating application on an interim basis. The father was not served with the applications or the affidavit. Being satisfied that the matter was both urgent and required orders to be made ex parte, Judge Harman proceeded to determine the matter.
His Honour relevantly ordered:
(1)By reference to Part 5 of the Federal Circuit Court Rules 2001, declare that I am satisfied that it is appropriate for the Application in a Case filed 28 April 2014 to be dealt with by the Court on an ex parte basis.
(2)That until further Order the respondent father [Mr Zanda] be restrained from leaving the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the respondent's name on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the respondent's name on the Watch List until the Court orders its removal.
(3)That until further Order each party, [the mother] and [the father], their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said children … from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watch List until the Court orders its removal.
(4)Pursuant to section 68B and pending further Order, the Respondent Father … shall be is hereby restrained and injuncted from:
(a)Entering upon or approaching within 100 metres of the place of residence of the mother and the children … or any school or educational institution attended by those children or any of them;
(b)Taking or attempting to take the children … into his care whether personally or through any other person or agent.
…
Although his Honour made orders at the conclusion of the ex parte hearing on 28 April 2014, his written reasons were not provided until 2 July 2014 when he made orders and delivered reasons in relation to a hearing that took place on
13 June 2014.
The primary judge’s reasons for decision for the orders made on 28 April 2014
His Honour noted the mother’s allegations of a long history of family violence and her assertion that she had not willingly complied with the arrangements that left some of the children for periods of time in Lebanon to be cared for by the father’s family.
His Honour referred to the mother’s concerns about what would happen should the father be notified of her application and said:
54. As regards the absence of steps taken to notify the father of these proceedings it is clear from the mother’s evidence that she has concerns, based on past actions, that if the father were given notice of her application, the orders that she is seeking and the relief that she seeks to have the Court impose, that the father may then well leave Australia himself and thus render the prosecution of her proceedings nugatory or seek to remove one or more of the four children presently in her care and travel with them to Lebanon. It is the latter that is of greater concern.
55. Whilst the father’s presence is not necessary for the wife to prosecute her substantive application the father’s absence would render nugatory the mother’s interim and interlocutory applications especially as regards the return to Australia of the three eldest children presently in Lebanon.
His Honour was satisfied that in the circumstances the matter required an urgent and ex parte hearing. However, his Honour restricted his consideration to the mother’s application to restrain the father from approaching her and the four children; from taking the children from the mother’s care and to order that the father and children be placed on the Airport watch list.
The hearing on 13 June 2014
His Honour, having made the orders to which we have referred, adjourned the matter to 19 May 2014. On that date, the father appeared. His Honour adjourned the matter to 13 June 2014 for further hearing.
Although at the hearing on 13 June 2014 the judge had the benefit of an affidavit filed by the father, the hearing was conducted without cross examination but in reliance on the parties’ affidavits and on submissions from their legal representatives. His Honour reserved his decision and made orders and delivered reasons for them on 2 July 2014.
On 2 July 2014 the judge ordered:
1.The wife shall advise the husband forthwith upon her being in possession of funds sufficient to meet airfares for each of the [three older] children … together with one accompanying adult to travel from Tripoli, Lebanon to Sydney, Australia.
2.Within 48 hours of being advised by the wife of her holding such funds the husband shall advise the wife of the arrangements that have been made by him to secure the travel of [the children in Lebanon]to the Commonwealth of Australia including:
(a) The name of the person who will be travelling and accompanying the children;
(b) The flights proposed to be organised and the cost of same including departure time from Tripoli, arrival time at Sydney and flight number and airline details;
(c) The full name, date of birth, passport number and other relevant information with respect to the accompanying adult.
3.Forthwith upon receipt of the above information [the mother] shall arrange, book and pay for the flights nominated, such flights to be booked as economy fares.
4.In the event the husband shall fail, neglect or refuse to provide advice to the wife of the above matters, then forthwith upon the expiration of the period of 48 hours from the wife’s advice to the husband, the wife shall be at liberty to make such arrangements as she may desire to cause the three children… to travel from Tripoli, Lebanon to Sydney, Australia and accompanied by such person or persons as she may desire and arrange.
5.Each of the husband and the wife shall forthwith do all things, sign all documents and give all consents and authorities necessary to enable, permit and cause the children … to be delivered into the Commonwealth of Australia no later than 12noon (sic) Friday
18 July 2014.6.Orders 1-5 of the Orders made by consent 19 May 2014 (being Orders restraining [the mother] from leaving the Commonwealth of Australia and requesting that her details be recorded upon the Airport Watch List to secure compliance with that Order) are discharged.
7.Request a copy of these Orders be forwarded forthwith to the Marshall of the Federal Circuit Court of Australia and to the Australian Federal Police together with a request that [the mother] be forthwith removed from the Airport Watch List.
8.Orders 2 of the Orders made 28 April 2014 (being Orders restraining the husband [the father] from leaving the Commonwealth of Australia and requesting that he be placed upon the Airport Watch List) shall be discharged forthwith upon arrival into the Commonwealth of Australia of each of the children ...
9.Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Immigration and Citizenship.
10.Request a copy of the Judgment delivered 2 July 2014 and the documents filed by the parties in these proceedings be referred to the Department of Human Services (Centrelink).
His Honour made further orders setting the matter down for hearing before him on 7 October 2014 and, pursuant to s 11F of the Family Law Act 1975 (Cth), (“the Act”) directed the parties to attend a Family Consultant for the purpose of a Child Inclusive Child Dispute Conference and requested the Family Consultant to provide a report to the Court on the outcome of that conference.
The primary judge’s reasons for decision of 2 July 2014
His Honour identified the issues necessary to be determined commencing with whether the court had jurisdiction to restrain the father from leaving Australia [43].
Jurisdiction to restrain the father from leaving Australia
After referring to authority, including Restein & Restein [2003] FamCA 1146, a decision of the Full Court in which an injunction to restrain a party’s freedom to leave the jurisdiction of the court was considered, his Honour quoted from it and said:
49.Their Honours did not specifically turn their attention to the jurisdictional basis upon which such a restraint might be made but it was clearly accepted by all three of their Honours that there was a sufficient albeit unidentified jurisdictional basis. The jurisdictional basis was not otherwise challenged by the parties.
At [65] after making further references to authorities, the judge observed that there were factual parallels between the matter before him and Fallon & Bashandi [2013] FamCA 672. Drawing on that case, his Honour said that the father:
…
a)Has not offered any undertaking to return.
b)Has not set out or given any evidence of his present circumstances whilst in Australia.
c)Decries his financial situation and asserts, consistent with the document tendered on his behalf, that he has no savings at all, save the sum of $100.75 in a Lebanese bank account (leaving aside that the statement corroborates [the mother]’s assertion that the account, in recent past, held over $20,000 and which balance was significantly reduced by a $17,000 withdrawal).
d)Puts through his Counsel the rhetorical question, put I accept on his instructions, of “who will support [the father] if he is required to remain in Australia? Will the Federal Circuit Court support him?” I make clear that taking [the father’s] evidence on its face he is clearly entitled to work in Australia (having Australian citizenship) and his own evidence is that he has worked extensively in Australia … and had chosen to remain here at times (including when his wife and children were absent in Lebanon) for the purpose of earning a much greater income than was possible in Lebanon and then returning that income to Lebanon to improve the overall financial position of the parties whilst never renouncing the position which he asserts had been adopted by him in 2006 (and presumably prior to his application for citizenship) that he would live permanently in Lebanon.
e)[The father] is silent on any proposal with respect to the children other than that they would all live with him in Lebanon and spend time with their mother provided she is also living in Lebanon.
f)[The father] is silent as to any proposal for the children travelling to Australia and does not offer any suggestion that the children would be brought to Australia for any purpose or at any time.
g)[The father] has no significant ties to Australia. As indicated above [the father] owns property (whether substantial or not cannot be ascertained) in Lebanon but does not own any property in Australia.
h)[The father] does not speak English or certainly does not speak or read English sufficiently well to enable him to swear his Affidavit without a jurat of interpretation and he has had the assistance of an interpreter provided by the Court throughout the proceedings.
(emphasis in original)
His Honour in light of the matters to which he referred in [65], said:
66. … I am satisfied that the Court has jurisdiction to both:
a) Make an Order restraining [the father] from departing the Commonwealth of Australia; and
b) To request the Australian Federal Police to place
[the father’s] name upon the Airport Watchlist to give effect to same.
The exercise of the discretion to make the injunction
His Honour then considered whether he ought to make the injunction sought.
In answering this question, his Honour referred to the father’s evidence and concluded at [75] that the father does not propose to reside in Australia and he and the mother decided in 2006 to live in Lebanon and raise their children there. His Honour referred to the father’s evidence that he suggested to the mother that he could earn more money working in Australia and that once he earned more capital they could return to Lebanon [76] and [77].
The judge after noting:
80. [The father] does offer at paragraph 27 of his affidavit:
“I understand a Watch List Order has been imposed by the Court. I will comply with all Orders imposed on me by the Court, however I would dearly love to see all my children. I respectively (sic) submit that the Orders should be made to enable me to spend time with my children here in Australia as well as in Lebanon.”
(emphasis in original)
observed that the father had not applied “via his Response for any such Order” [81].
His Honour found that the father would return and live in Lebanon as soon as he was able to leave Australia [82].
He concluded:
88. I have no satisfaction, in light of [the father’s] evidence and the matters noted above, that if [the father] were free to leave the Commonwealth of Australia that he would return. Indeed, his own evidence indicates that he has no real connection to this jurisdiction and he does not submit to it.
The judge considered that the mother’s application would be frustrated if the father was allowed to leave the jurisdiction before the three children then living in Lebanon were brought to Australia and, further, that the father would not comply with an order to bring the children to Australia if he left Australia nor could the mother enforce any order to compel compliance with an order that the children be returned to Australia if the father was not in the jurisdiction [90 (a) – (c)].
Thus his Honour concluded that it was appropriate to enjoin the father from leaving Australia.
Forum
His Honour then turned to consider the issue of forum. The father contended that Lebanon was the appropriate forum in which the issue between the parties should be determined. Counsel for the father submitted to his Honour that Australia was “a clearly inappropriate forum”.
The judge quoted extensively from previous decisions both of single judges of the Family Court and the Full Court, incorporating extensive passages from the High Court’s decision in ZP v PS (1994) 181 CLR 639 and concluded that Australia “is the appropriate forum” in which to consider the parenting issues [121].
Referral of matters to Government Authorities
His Honour at [160] raised the question of whether he ought to refer “the papers in these reasons” to governmental agencies. He said:
As indicated above I had made clear to Counsel for each of the parties that I required submissions from them as to why such a referral should not be made so as to bring to the attention of those authorities matters which are of some concern and potentially other than consistent with the parties’ obligations under Australian law. No submissions were made.
In considering this question, his Honour at [161] referred again to the evidence of the father that the parties had decided to live permanently outside of Australia from 2006, and that three of the children have lived permanently outside of Australia for some time and had been “…largely in the care of people other than their parents or either of them”. He further noted that the parties had received Family Tax Benefits for the children and that the mother had (at the behest of the father) returned to Australia from time to time to ensure that her social security benefits would continue and she had travelled to Australia so that their children could be born in Australia and thus receive the baby bonus [162].
Turning his attention to s 500 of the Social Security Act1991 (Cth) his Honour noted that the requirements set out in that section for qualification for parenting payments appear not to have been met in relation to some or all of the children [166]. He said:
167.The Court is required to be vigilant with respect to compliance with Australian law and to act in aid of that law. It is not the Court’s role to police qualification for or receipt of benefits, that is a matter for appropriate government agency, in this case the Department of Human Services.
His Honour then determined that he would refer the parties to the Department of Human Services [168].
As to what his Honour referred to as the “issues of citizenship”, he set out sections 21 and 22 of the Australian Citizenship Act 2007 (Cth) which govern the eligibility for citizenship and noted that:
170.The “general residence” requirement set out in section 22 would appear to be partially met in that [the father] had resided in Australia from the time of his entry in 2001 until March 2007. It is unclear whether for that period or any portion of it [the father] was a “permanent resident”. It is his expressed intent as to future residence that would appear lacking.
(original emphasis)His Honour then considered the legislative provisions that in fact applied when the father made his application for citizenship and observed that the legislation did not contain an equivalent requirement in relation to intention to reside [171].
He continued:
172.It is troubling and concerning that [the father’s] evidence is that his citizenship was applied for or at least granted in 2006 at the very time when, consistent with his evidence, he had formed the desire and intention to live permanently in Lebanon and to return to Australia from time to time purely and solely for the purpose of earning a greater income than was available to him in Lebanon returning the funds to Lebanon.
173. I again make no judgment with respect to the above other than there would appear to be, at least potentially, some anomaly as regards the eligibility requirements for citizenship at the time the application was made and [the father’s] evidence.
The Appeals
By Notice of Appeal EA 80 of 2014, the father raises ten grounds of challenge to his Honour’s orders of 28 April 2014. Twenty one grounds in relation to
his Honour’s orders of 2 July 2014 are raised in Notice of Appeal EA 79 of 2014. However, the grounds in the Notice of Appeal filed in EA 79 of 2014 effectively incorporate the appeal grounds from the Notice of Appeal filed in EA 80 of 2014.
In his written summary of argument, counsel for the father abandoned some of the grounds and, in the course of argument on the appeal, the challenges to
his Honour’s decision were further distilled into the following issues:
·Jurisdiction of the Court to make orders in relation to the children not presently in Australia;
·Forum;
·Power of the Court to order the children not within Australia to be returned;
·Power of the Court to restrain the father from leaving Australia pending the determination of the proceedings;
·The exercise of his Honour’s discretion in ordering the children in Lebanon to be brought to Australia;
·The exercise of his Honour’s discretion in enjoining the father from leaving Australia;
·Apprehended bias and prejudgment; and
·Denial of procedural fairness
We will address the appeal by considering those issues.
Jurisdiction
Although it was argued on behalf of the father both before the primary judge and on appeal that the court had no jurisdiction in relation to children outside Australia, it was eventually conceded by counsel for the father that the court does in fact have jurisdiction to make orders in respect of children not in Australia.
It is beyond doubt that the Act gives jurisdiction in relation to a child outside the Commonwealth of Australia.
Section 69E of the Act states:
Child or parent to be present in Australia etc.
(1) Proceedings may be instituted under this Act in relation to a child only if:
(a) the child is present in Australia on the relevant day (as defined in subsection (2)); or
(b) the child is an Australian citizen, or is ordinarily resident in Australia, on the relevant day; or
(c) a parent of the child is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(d) a party to the proceedings is an Australian citizen, is ordinarily resident in Australia, or is present in Australia, on the relevant day; or
(e) it would be in accordance with a treaty or arrangement in force between Australia and an overseas jurisdiction, or the common law rules of private international law, for the court to exercise jurisdiction in the proceedings.
It is further not in doubt that the Act gives power to make parenting orders in relation to children outside Australia and the Court can, in appropriate circumstances, make orders that require a child to be brought to Australia (see
s 65D(1)).
Section 69E and the power to make parenting orders under s 65D(1) must now be applied in the light of Australia’s ratification of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (“the Child Protection Convention”). The implementation of the Child Protection Convention is by way of amendments to the Act, in particular Division 4 of Part XIIIAA
However, as Lebanon is not a party to the Child Protection Convention and the otherwise limited circumstances in which a court can make orders in respect of a child in a non-Convention country do not apply in this case, the jurisdiction of the court under s 69E to make parenting orders remains an appropriate source of power.
Apprehended bias, prejudgment and denial of procedural fairness
Consistent with authority we will deal with this issue first (see Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577).
Counsel for the father argued that the primary judge’s statements in the reasons for the ex parte orders on 28 April 2014, carrying through to the orders of
2 July 2014, are such as to give rise to an apprehension of bias and an apprehension that his Honour prejudged the issue before him. Thus, it was argued that the primary judge came to his conclusions about the issues before him through the prism of that prejudgment.
Before we consider this ground it is important to bear in mind that at no time has there been a contested hearing of the issues. In the first instance, the orders were made ex parte based on the mother’s affidavit and, although by
13 June 2014, the father had filed an affidavit in answer to the mother’s evidence, there had been no testing of that evidence. The orders made on
2 July 2014 were made after his Honour had received submissions on the untested evidence.
In determining this issue we will set out his Honour’s comments made during the various hearings and what he said in his reasons for judgment of 28 April and 2 July 2014.
Hearing on 19 May 2014
After the father had been served with the mother’s documents and the orders made by his Honour ex parte, the matter returned to his Honour on 19 May 2014 in order to set a date for further hearing of the matter. It is to be recalled that at this time, the father had not filed any material in response to the mother’s affidavit, with the father’s affidavit and response not being filed until 6 June 2014.
On 19 May 2014, his Honour said to counsel then appearing for the father, in the course of discussion as to an appropriate date for the further hearing of the matter:
HIS HONOUR: … But if I'm remembering the matter correctly, it’s an affidavit that’s riddled with references to coming back to Australia to have babies to get baby bonuses, and there are – the mother had asked me to make an order that required the father to cause certain children – I can’t remember whether it’s three or four – to be brought back from Lebanon to here, and I declined to that on the basis that the evidence seemed to make clear that they had been living in Lebanon for quite a little time.
MS OBRADOVIC: And, indeed, your Honour, it appears that the three – all of the children have only ever gone to school in Lebanon … when one looks at their ages …
--- and that they have only travelled to Australia for short periods of time. Your Honour, we have three children who are currently in Lebanon without a parent.
HIS HONOUR: Yes
MS OBRADOVIC: We have ---
HIS HONOUR: Well, that didn’t seem to bother dad when he came here and left them there without a parent.
(Transcript, 19 May 2014, page 2, from line 35)
Primary judge’s reasons for the orders made on 28 April 2014
At [74] his Honour said in considering the attitudes of the parents towards their obligations to the children:
It would not be a fulfilment of any parental responsibility for the four youngest children to be removed again from the Commonwealth of Australia…. However, for the children to be left, against and notwithstanding the objections of their mother, in the care of paternal relatives and the mother, forced to return to Australia or forced to return to Australia without the children and, thus these children being separated from their caregiver, in the case of the four younger children with respect to whom I propose to make orders, would potentially be psychologically harmful to them.
At [104] his Honour commented that the evidence “…would suggest that the father makes no contribution financially or otherwise to the children’s care and upkeep.” He then noted the mother’s evidence that she returned to Australia shortly before the birth of the children “… for the purpose of obtaining financial benefit through payment of a baby bonus and/or returning to Australia at different times ... for the purpose of ensuring the ongoing entitlement to Centrelink benefits.” He concluded: “Those matters, whilst peripherally connected to the children’s best interests in that they require financial support would appear to be anything other than firmly rooted in a concern for their welfare.”
His Honour then said:
111. Certainly, the actions which are alleged to have taken place, as recited above, regarding the children, or various of them being left in the care of relatives willing or unwilling for the purpose of addressing Centrelink entitlement issues would appear to be founded in anything other than a zealous desire to ensure the children’s best interests are met fully and completely, including through their remaining together to provide emotional support and to pursue important sibling relationships.
His Honour returned to what he called the “Centrelink issues” again and said:
116.… However, to the extent that the mother has alleged an extraordinary level of family violence, coercion and control in her relationship with the father, complicated by the family dynamic that exists and precedes their marriage, the criticism is clearly more firmly directed towards the father.
The hearing on 13 June 2014
Shortly after the hearing commenced his Honour said:
... The other issue that I want to hear from you both about is why I shouldn’t be referring the papers to the Department of Human Services. I am very disturbed by some of the evidence and the amount of money that flows from here to Lebanon in relation to children who on your client’s case, Mr Heazlewood were never intended to or will reside in Australia, and the mother’s evidence that people keep coming back to Australia just to get the baby bonus and sort out their Centreline then go back overseas. I think in the current budget climate that’s not quite heavy lifting, and that’s something the Department of Human services should look at. So it’s not intended to be a threat to anybody, but I just think it should be looked at. It is just not quite what is intended as the provision of welfare assistance. We’re not here to prop up the economies of small towns in Lebanon, but be that as it may I would want to hear from you about it, and I don’t have a particular view about that other than it leaps off the page at one, and they are big amounts of money.
…
No, it’s an issue of how many absences and how long, and I am referring to them as absences not to suggest that the Commonwealth is the primacy of residence of anyone at the time, but certainly stable and consistent arrangements don’t seem to typify what has happened for these parties, and I appreciate Mr Mostyn your client says that’s because there have been significant issues of violence. Mr Heazelwood, I appreciate your client says there was none and it was for entirely other reasons. Certainly the one thing people seem to agree about or they don’t even necessarily agree about that is the Centrelink issue.
...
(Transcript, 13 June 2014, page 2, from line 35)
After a short adjournment to allow his Honour to deal with other matters in his list, the hearing resumed. Very soon thereafter, in the course of his submissions, counsel for the father asked, rhetorically; “Who’s going to pay for the [father] to stay here?” being a reference to the prospect that his Honour’s
ex parte injunction would continue indefinitely. His Honour said:
HIS HONOUR: He can work. Why doesn’t he get a job? He has had one. After all his evidence is at around the time that he applied for and obtained Australian citizenship – a matter the Department of Immigration can look at – there was a conversation saying “let’s go to or remain in Australia because I can work and earn more money there to create the life that we both intend” on the husband’s evidence of living permanently in Lebanon.
MR HEAZLEWOOD: Well, your Honour---
HIS HONOUR: Far be it for me to adopt the language of the Treasurer, but one would have thought the age of entitlement is over. That just sounds like absolute usage of Australia’s welfare system… and immigration system.
(Transcript, 13 June 2014, page 12, from line 9)
His Honour then said, in the course of the father’s counsel’s submissions on the father’s capacity to pay the airfares for the three children in Lebanon to come to Australia:
…I can’t accept a submission that says I’ve got no evidence that he can afford to do it. He owns two parcels of real estate. No idea what they’re worth, but he owns them. I know from his own evidence that he came here and worked in Australia because he could accumulate wealth more quickly to pay off the mortgage. Glad to see Australia in your client’s mind has had some utility in his children’s wellbeing, ie, paying off the mortgage, but I must say those issues smell very badly about the whole matter. And I appreciate your client denies the allegations that the wife makes about the Centrelink issues. That’s going to be her problem.
(Transcript, 13 June 2014, page 17, from line 39)
Warming to his theme, when counsel for the father again raised the issue of the father’s financial support if he was restrained in Australia for the foreseeable future, his Honour said:
Age of entitlement is over, get a job.
… He is an Australian citizen whose evidence is that he has not only worked in Australia but he came back from Lebanon to work in Australia with his wife or without her, in fact, on periods of time when she went back to Lebanon, stayed here so he could continue working to earn better money than he can in Lebanon. So I'm really not going to feel great sympathy or empathy for the suggestions that this man is trapped here unable to support himself. He clearly can.
(Transcript, 13 June 2014, page 20, from line 29)
His Honour’s views about the parties, particularly the father’s recourse to financial benefits in Australia, were also expressed in the reasons for decision of 2 July 2014.
Reasons for decision of 2 July 2014
Under the heading “Factual Background” his Honour said:
29. There are a number of troubling and concerning issues raised by the evidence of the parties principally relating to:
a) Issues of family violence; and
b) The alleged and disputed intention of the parties jointly and/or individually to live (and thus have the children or some of them live) permanently in Lebanon rather than Australia.
30. A number of financial issues would appear to arise as a consequence of the evidence of the parties and each of them and being financial issues which would cause concern as to whether Federal Benefit (particularly Family Tax Benefit) have been obtained appropriately or not and whether [the father’s] citizenship (obtained in 2006) was obtained on the basis of full, frank and candid disclosure or otherwise.
31. Having regard to the latter of the above issues I had raised with counsel for each of the parties, when the matter was first called on, my desire to hear submissions from each as to why referral of the papers should not be made to the Department of Human Services and the Department of immigration and Citizenship respectively. When the matter was ultimately heard, no submissions with respect to those issues were made.
(emphasis in original)
His Honour returned to these “financial issues” at a number of places in the reasons.
In considering the question of whether the court had jurisdiction to enjoin the father from leaving Australia, at [65] the judge set out the matters which he apparently took into account in determining this issue and noted that the father:
d) Puts through his Counsel the rhetorical question, put I accept on his instructions, of “who will support [the father] if he is required to remain in Australia? Will the Federal Circuit Court support him?” I make clear that taking [the father’s] evidence on its face he is clearly entitled to work in Australia (having Australian citizenship) and his own evidence is that he has worked extensively in Australia … and had chosen to remain here at times (including when his wife and children were absent in Lebanon) for the purpose of earning a much greater income than was possible in Lebanon and then returning that income to Lebanon to improve the overall financial position of the parties whilst never renouncing the position which he asserts had been adopted by him in 2006 (and presumably prior to his application for citizenship) that he would live permanently in Lebanon.
(emphasis in original)
As to whether the Court ought to exercise its discretion and make that order, his Honour said:
75. The above difficulties aside, it is clear from [the father]’s evidence that he does not propose to reside in Australia. He makes clear (paragraph 26 of his affidavit) that “in 2006…we decided to stay and live in Lebanon and bring the children up there”.
76. Notwithstanding this express intent and action thereupon
[the father] applied for and pursued an application for Australian citizenship. That would appear to have been potentially mischievous although not particularly relevant or germane to this determination. That circumstance is, however, relevant in that action was then taken to act upon that suggested desire and intent (although
[the mother] denies that it was her own, she having been born in Australia and desired to remain living in Australia) by travelling to Lebanon in early 2007 and whether at that time or prior thereto purchasing a unit … which, whilst ever the parties or either of them have been in Lebanon, has become the family home.(emphasis in original)
In dealing with the issue of forum in which to determine the dispute, his Honour again referred to the parties’ receipt of benefits at [117] concluding that the fact that the children had “…received financial support from the Commonwealth of Australia throughout their lives (in the form of Family Tax Benefits paid to their parents and baby bonuses with respect to the younger children)” was a matter relevant to the consideration of the issue.
As we have indicated, the primary judge referred his reasons and other material in the matter to both the Department of Human Services and to the Department of Immigration and Citizenship saying at [160] that there were; “…matters which are of some concern and potentially other than consistent with the parties’ obligations under Australian law”.
His Honour referred at [164] to the provisions of the Social Security Act 1991 (Cth) as they relate to the payment of parenting benefits. He concluded at [166] that “The above requirements would not appear to have been met with some or all of the children”.
Moving on then to “issues of citizenship” his Honour said:
169. With respect to issues of citizenship it is to be noted that section 21 of the Australian Citizenship Act 2007 provides that a person is eligible to become an Australian citizen if the Minister is satisfied that the person:
(a) Is aged 18 or over at the time that the person made the application; and
(b) Is a permanent resident:
(i)At the time the person made the application; and
(ii) At the time of the minister’s decision of the application; and
(c)Satisfies the general residence requirement; (section 22) and;
(g) is likely to reside or continue to reside, in Australia or to maintain a close and continuing association with Australia if the application were to be approved.
170. The “general residence” requirement set out in section 22 would appear to be partially met in that [the father] had resided in Australia from the time of his entry in 2001 until March 2007. It is unclear whether for that period or any portion of it [the father] was a “permanent resident”. It is expressed intent as to future residence that would appear lacking.
171. The law which applied in 2006 was the Australian Citizenship Act 1948. Section 13 of the legislation did not contain an equivalent requirement of “likely to reside or continue to reside in Australia or to maintain a close and continuing association with Australia”.
172. It is troubling and concerning that [the father’s] evidence is that his citizenship was applied for or at least granted in 2006 at the very time when, consistent with his evidence, he had formed the desire and intention to live permanently in Lebanon and to return to Australia from time to time purely and solely for the purpose of earning a greater income than was available to him in Lebanon and returning the funds to Lebanon.
173. I again make no judgment with respect to the above other than there would appear to be, at least potentially, some anomaly as regards the eligibility requirements for citizenship at the time the application was made and [the father]’s evidence.
(emphasis in original)
His Honour did not at any time during the hearing raise his desire to refer the father to the Department of Immigration and Citizenship with the father’s counsel. As we have set out earlier, when the hearing on 13 June 2014 commenced his Honour said:
HIS HONOUR: …
The other issue that I want to hear from you both about is why I shouldn’t be referring the papers to the Department of Human Services. I am very disturbed by some of the evidence and the amount of money that flows from here to Lebanon in relation to children who on your client’s case,
Mr Heazlewood were never intended to or will reside in Australia, and the mother’s evidence that people keep coming back to Australia just to get the baby bonus and sort out their Centrelink then go back overseas. I think in the current budget climate that’s not quite heavy lifting, and that’s something the Department of Human Services should look at. So it’s not intended to be a threat to anybody, but I just think it should be looked at. It is just not quite what is intended as the provision of welfare assistance. We’re not here to prop up the economies of small towns in Lebanon, but be that as it may I would want to hear from you about it, and I don’t have a particular view about that other than it leaps off the page at one, and they are big amounts of money. …(emphasis added)
(Transcript, 13 June 2014, page 2, from line 36)Given that his Honour did not then or later give any indication to counsel for the father that he intended to refer the father to the Department of Immigration and Citizenship, it is unsurprising that no submission was made to him in that regard. Counsel for the mother conceded that in the circumstances of this case, it amounted to a denial of procedural fairness.
It is useful to set out, albeit in brief, the principles to be applied in considering the issue of apprehended bias.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 348:
22.The particular principle or principles which determine the grounds upon which a judge will be disqualified from hearing a case follow from a consideration of the fundamental principle that court cases, civil or criminal, must be decided by an independent and impartial tribunal.
Johnson v Johnson (2000) 201 CLR 488, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492:
11. … It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
(emphasis added)
The orders made by his Honour referring the issue of the parties’ receipt of government benefits and the issue of the father’s citizenship to the relevant departments are, in our view, the end result of his Honour’s opening salvo about the father’s credibility, what his Honour called “financial issues” and the father’s application for citizenship [30].
The contended apprehension of bias is fortified by the fact that nothing in the sections of the acts to which his Honour referred in the reasons suggested any wrongdoing by either of the parties and, further, nothing in the issues being determined by his Honour required those referrals to be made, especially without a hearing of the issue. It is of particular concern that his Honour apparently formed a strong view about the father’s credibility and the candour with which he made his application for citizenship when his Honour knew nothing of the application or what was contained within it. Equally his repeated references to the father’s conduct in what is a clear tone of outrage intruded into all aspects of this case.
Furthermore, the legislative provisions in force when the father applied for citizenship as set out by the primary judge in the reasons, did not provide a basis for concluding that the father had done anything dishonest or wanting in candour when applying for citizenship.
The passages to which we have referred drive us to accept the proposition of the appellant that a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions to be determined and the apprehension that his Honour had prejudged the issues. The whole of his Honour’s comments and his reasons lead, regrettably, to one conclusion, that they give rise to an apprehension of bias and prejudgment.
Counsel for the father in the appeal further relied on his Honour’s comments on other issues which, it was said indicated that his Honour had prejudged the issues. We agree.
As we have already recorded, at [104] of his reasons for the orders made on
28 April 2014, his Honour commented that the evidence “…would suggest that the father makes no contribution financially or otherwise to the children’s care and upkeep”. This comment is curious because there was no evidence before him then that the father had failed to provide for the children, financially or otherwise. It was not a claim made by the mother either in the affidavit then before his Honour or in her second affidavit filed sometime later. His Honour’s comments then about the father’s provision of support for the children were not informed by the evidence but rather from some preconceived view.
This challenge has been made out and his Honour’s comments gave rise to an apprehension of bias, and in the circumstances of the matter before him, his Honour’s failure to seek submissions as to why the father’s citizenship should not be investigated before so ordering is a denial of procedural fairness.
Although argued but faintly, counsel for the mother raised the absence of complaint by counsel for the father during the hearing on 13 June 2014 about his Honour’s comments. It is true that the father’s counsel did not ask
his Honour to disqualify himself nor did he bring the comments to his Honour’s attention at the time.
As is well settled, where comments are made which are likely to convey an impression of bias, a party is not entitled to stand by, only to raise the issue once judgment is delivered (see Vakauta v Kelly (1989) 167 CLR 568). However, in this matter, what was said by Brennan, Deane and Gaudron JJ at page 573 is apposite:
If the above comments made by the learned trial judge in the course of the trial had stood alone, we would have been of the view that the appellant, having taken no clearly stated objection to them at the time and having stood by until the contents of his Honour’s judgment were known, could not now found upon them in order to have that judgment set aside on the grounds of a reasonable apprehension of bias. The statements which the learned trial judge had made about his preconceived views of Dr Lawson were, however, effectively revived by what his Honour said in his reserved judgment. The appellant’s failure to object to the comments made in the course of the trial cannot, in our view, properly be seen as a waiver of any right to complain if comments made about Dr Lawson in the judgment itself would, in the context of those earlier comments, have the effect of conveying an appearance of impermissible bias in the actual decision to a reasonable and intelligent lay observer.
This is exactly what happened in this case; his Honour’s comments made in the hearing were repeated and elaborated on in his reasons “reviving” the cause for apprehension of bias. No waiver could be argued against the father in relation to them.
The stridency of his Honour’s views and that he saw fit to refer the circumstances of the father’s citizenship to the authorities is extraordinary and drives the acceptance of the argument of apprehension of prejudgment. We are at a loss to understand how the primary judge could have seen the referral as a legitimate use of judicial power in these circumstances.
Both in the hearing of the proceedings on 13 June and in the reasons of
2 July 2014 at [141], his Honour referred to the court as being “…an arm of the executive government”. We feel constrained to take issue with his Honour’s characterisation of the judiciary. The separation of powers is enshrined in the Australian Constitution. The judiciary is not an arm of the executive government. To suggest that it is represents a fundamental misunderstanding of the nature of the judiciary and the power being exercised by the judge.
The challenges regarding apprehension of bias and denial of procedural fairness are made out.
In accordance with well accepted principles, where an apprehension of bias is found there can be no outcome other than another trial, as will be the outcome in this matter.
In Concrete Pty Ltd v Parramatta Design Developments Pty Ltd (2006) 229 CLR 577, Kirby and Crennan JJ said at [117]:
…Actual or apprehended bias strike at the validity and acceptability of the trial and its outcome. It is for that reason that such questions should be dealt with before other, substantive, issues are decided. It should put the party making such an allegation to an election on the basis that if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues. Even if a judge is found to be correct, this does not assuage the impression that there was an apprehension of bias…
However, the other challenges to his Honour’s orders reveal significant errors by the primary judge in the application of important principle which need to be considered.
Forum
The primary judge considered the issue of forum at [95] under the heading “Is Australia an appropriate or “clearly inappropriate” forum to deal with the proceedings and the totality of the proceedings?”, and concluded with the finding:
121. In short, I am satisfied that Australia is the appropriate forum to deal with issues with respect to the parenting of all seven children and, conversely that Australia is not “a clearly inappropriate forum” for such determination.
(emphasis in original)
Unfortunately the question asked and answered by his Honour under this heading was incorrect.
Although the primary judge referred to many authorities (including ZP v PS to which we will shortly return) in his exploration of the issue of forum and in coming to his view that the test to be applied was “a clearly inappropriate forum”, he did not apparently distil the principles to be applied in coming to the determination of forum from the cited authorities.
The correct test for determination of forum when dealing with children’s issues has not been in doubt since ZP v PS (1994) 181 CLR 639 at 660 where Brennan and Dawson JJ said:
Once the jurisdiction conferred by s. 63 of the Family Law Act 1975 (Cth) (“the Act”) on the Family Court in custody proceedings is effectively invoked — and there is no doubt that both parties invoked that jurisdiction in this case — s. 64(1)(a) of the Act requires that the Court regard the welfare of the child as the paramount consideration in exercising the Court's power. Section 64(1)(a) makes no exception in the case of proceedings relating to the custody of a child ordinarily resident in another country, even if the child has been abducted from that country and brought to Australia in breach of an order of a court of competent jurisdiction in the other country.
As the Full Court clearly stated in Pascarl & Oxley (2013)FLC 93-536:
65. The question of which forum of two competing fora might be the appropriate place for the matter to be determined is subject to a number of now well-settled authorities.
66. ….
67. The High Court had cause to consider whether the Voth ‘clearly inappropriate forum’ test had application in relation to proceedings in the Family Court of Australia on the question of whether a child residing in Australia should be returned to a foreign jurisdiction so that the foreign court could determine issues concerning custody of the child (ZP v PS (1994) 181 CLR 639). The High Court, comprising Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ, held that the doctrine of forum non conveniens is not applicable to a custody case where the child is within the jurisdiction. Instead, in exercising the jurisdiction which has been conferred upon it, the Family Court must determine what is in the best interests of the child.
After considering the authorities the Full Court in Pascarl & Oxley said:
86. …the principles to be applied in parenting cases which involve a foreign element will be determined by the nature of the application before the court. Where an application is made under provisions of the Act which prescribe the best interests test, whether or not a child is within the jurisdiction, then it is that test, and not the test of forum conveniens, which will apply.
(emphasis in original)
The issue for determination on the appeal as it relates to forum was whether his Honour’s conclusion that Australia was the proper forum in which to determine the issues raised by the parties was correct. It was asserted on the appeal that in coming to his conclusion about forum, the primary judge failed to take into account highly relevant matters and took into account irrelevant matters.
We agree. Having adopted the incorrect test for the determination of the issue of forum, his Honour’s consideration of the issue was misguided. At [109]
his Honour set out the matters that apparently guided his determination as to forum. Those matters relate to the periods of time that the father either alone or with the mother cared for the children contrasted with the periods of time in which the mother cared for them. His Honour continued:
d) Most importantly [the mother] alleges (although it is denied) that one or more of the children have remained in Lebanon at times since March 2007 as part of a deliberate and orchestrated plan by [the father] (in consort (sic) with members of his extended family (noting [the father’s] evidence that Lebanese cultural (sic) is patriarchal)) to ensure that [the mother] did not leave the marriage. That allegation is the subject of significant dispute and controversy. However, as interim and interlocutory proceedings I must the evidence on its face conscious that it may ultimately be found proven or not proven.
Further, his Honour concluded:
112. Both parents propose on a final basis that all seven children should live together. Accordingly, whilst the proceedings are on foot it would be beneficial for them to be present within the same jurisdiction and able to spend time with each other.
The primary judge took into account that the parties are Australian citizens as are all of the children ([114]) and that some of the children had lived in Australia for significant periods of time and received various financial benefits which his Honour took as providing a connection with Australia.
He said:
118. The determination of the children’s best interests can occur expeditiously before this Court. Hearing dates can be made available in October this year and, subject to the presentation of the three eldest children to the Commonwealth of Australia, arrangements can also be dealt with on an interim basis for both parents to spend some time with the children and the children with each other (subject to the parties presenting evidence which satisfies the Court as to the appropriateness of the arrangements that they may propose).
119. I also note the evidence of [the father] that the three eldest children in Lebanon whilst he alleges that they are “entrenched” in the Lebanese schooling system, are shortly to commence a three month period of holidays. Accordingly, the children will, for the period July-September have no such schooling commitments. On the basis of when the hearing of these proceedings can occur, thus, I am satisfied that the children would not be prejudiced.
120. Each of these children has previously visited Australia and, indeed, has lived in Australia for various periods up to one half of their respective lives.
(emphasis in original)
Had his Honour applied the correct test for determination of the issue of forum, namely the best interests of the children, significant matters affecting the best interests of the children or some of them would have required serious consideration. For example, the three older children had lived in Lebanon for a considerable period. Those three children, if not the other four, were habitually resident in Lebanon (as were the parties) until the mother unilaterally determined to change that situation. Although when the matter first came before him on 28 April 2014 his Honour mentioned that there might be a need to give notice of the proceedings to the people who had the care of them, his Honour did not again consider giving notice to the father’s mother who, it seemed had principally been looking after the children during the periods in which the parents were in Australia.
As his Honour noted, the three older children had been attending school in Lebanon. According to the father’s affidavit, two of the children currently in Australia had been attending the same school as the older three children. At no point in his consideration did his Honour do more than “note” the circumstances of the children in Lebanon. He did not consider the potential effect on them of being removed from school and brought to a country which, on any view, had not been their place of residence for many years. While he referred to them being brought to Australia in school holidays, he gave no consideration to any other disruption and dislocation that might be caused to them in being uprooted from their school and familiar surroundings and brought to Australia.
The primary judge did not take account of how the proceedings could be conducted to cause the least disruption to the three children while still allowing them to participate in the proceedings. His Honour incorrectly concluded at that the only way that the children in Lebanon could participate in the proceedings was for them to be present in Australia and that their views could not otherwise be ascertained. In this matter where the father and mother both said that they regularly contacted the children by phone and the father had contact with the children through Skype and email, there seemed to be no reason why the children could not be interviewed in their residence in the same way.
To give context to this issue, we observe that if Lebanon was a party to the Child Protection Convention, given that at least the three older children are undoubtedly habitually resident in Lebanon and it seems powerfully arguable so were the other four children, this court would have no jurisdiction to make orders in relation to them. The point being that a proper determination of the issues in this matter required the primary judge to bear firmly in mind the residence of the children and all of them. As will become apparent, he did not do so.
Indeed, during submissions on the court making orders for a hearing while the children were in Lebanon, counsel for the father said:
MR HEAZLEWOOD: … And probably your Honour would need to get some form of intervention by way of a counsellor or some other person to interview the children. Now, the utility of that, if the three children are still in Lebanon---
HIS HONOUR: Is zero.
(Transcript, 13 June 2014, page 18, from line 4)We are compelled to the conclusion that the primary judge was determined, at this interim stage, to ensure all seven children were in Australia, away from the place of their habitual residence so that he could make orders in relation to them, when it was unnecessary to the proceedings and without considering whether to make that order was in their best interests. We are fortified in coming to this view by an exchange that occurred at the conclusion of the hearing on 13 June 2014 between the judge and counsel for the father:
MR HEAZLEWOOD: Well, I probably submit that if – give the father a chance to see his children. If we could make it next Monday. I take it ---
HIS HONOUR: I would want all seven children here if I’m taking up that offer. Happy to give it to you on that basis.
(Transcript, 13 June 2014, page 40, from line 16)His Honour made no order for the father to see the children in Australia because, it seems, the judge saw the children in Australia spending time with their father as being conditional on him causing the other three children to come to Australia. His Honour clearly did so without turning his mind to the best interests of any of the children either those in Lebanon or those in Australia.
Thus we are persuaded that his Honour’s use of the incorrect test to determine the issue of forum, which led him to not consider the best interests of the children, also carried through to the manner in which his Honour determined that the hearing of the matter should proceed.
On two occasions during the hearing on 13 June 2014 his Honour said that the matter was of sufficient complexity that it would be more appropriately heard in the Family Court. He said to the parties that his enquiries revealed that the matter could have a final hearing in the Family Court in September 2014. His Honour chose not to transfer the matter to the Family Court and, instead, set the matter down for hearing before him in October 2014. However, that hearing would not be informed by a family report, his Honour apparently considering that a s 11F memorandum would suffice. His Honour said that if a s 62G(2) family report was to be prepared, the matter would not receive a hearing date in the Federal Circuit Court before 2015.
The s 11F process does not involve a detailed examination of a child’s circumstances nor involve the depth of investigation and analysis as does a family report. Given those constraints, a s 11F memorandum would not contain recommendations for the ultimate disposition of the matter, it being necessarily understood that the comparatively limited interviews and investigations may render any such opinion unsafe. The process by which his Honour was to hear and finally determine the issues in this matter was in this regard, flawed
His Honour applied the incorrect test in determining the issue of forum in which to hear the case and failed to take into account highly relevant matters necessary to a proper disposition of that question. Thus his discretion miscarried.
This challenge is made out.
Power to make the order restraining the father from leaving Australia and exercise of discretion
It is by no means clear that the primary judge understood the source of power being exercised by him in restraining the father from leaving Australia. Further, a reading of his Honour’s reasons seems to indicate some confusion by his Honour between jurisdiction and power.
In the reasons for the orders of 28 April 2014, the judge considered the power to make the injunction sought at [86] and following. He said:
86. The relief that is sought by the mother can be addressed appropriately be section 68B or section 114 of the Act. The orders that are sought by the mother, to the extent that I propose to deal with the relief sought in the Application in a Case, is injunctive relief suggested to relate to the children’s best interests and their need for protection.
87. Section 68B permits the Court to exercise jurisdiction and grant injunctions considered appropriate for the welfare of children, including injunctions for personal protection, restraining a person from entering or remaining in a place of residence or other specified area, and an injunction of broader terms within the ambit of subsection (2) being “…in any case in which it appears to the court to be just or convenient to do so.”
His Honour said that the injunction sought by the mother preventing the father from leaving Australia or removing the children from her care fell within the power of s 68B. He then continued and referred to s 114 at [90] saying that there was “…nothing to suggest that it cannot be applied for that purpose” and that it “…gives the Court the power to injunct (sic) a person from being upon or entering certain premises, as well as orders for the protection of a person or a marital relationship or property”.
He concluded:
91. I am satisfied that those sections or either of them is sufficient bases (sic) for the relief sought.
When the matter came before his Honour on 13 June 2014, counsel for the father raised the court’s power to make the order restraining the father from leaving Australia (Transcript, 13 June 2014, page 6). His Honour did not then, or later in the discussion with counsel when he returned to the court’s power to restrain the father, indicate that he had made the injunction pursuant to s 68B or s 114 (or either of them).
His Honour’s reasons for decision of 2 July 2014 similarly reveal confusion over the source of power by which he made the injunction restraining the father. In considering the issue, his Honour quoted at length from authority and said:
56. Indeed, there are a myriad (sic) of cases in which relief of the nature sought by [the mother] has been granted without a specific discussion of the jurisdictional basis for same. …
We must also observe that in his consideration of the authorities, his Honour did not refer to the principal authority on this issue, Sampson & Hartnett (No 10) (2007) FLC 93-350 in which the Full Court said that the power to make an injunction that directly affects a parent and the parent’s right of movement is not found in s 68B but rather in s 114(3).
There, the court was asked to consider the constitutionality of an order that directly affected a parent’s right of movement. In the course of considering that question, the majority, Bryant CJ and Warnick J said, after setting out the terms of s 64B:
35.In our view, notwithstanding the breadth of the language in the section, particularly the terms of para (i), an order requiring a parent to live in a particular place is not a parenting order as there defined.
36. As their Honours in H v E (supra) pointed out in the passage earlier quoted (at p 85,887):
… the power to place a restraint upon movement of the child appears to be found in the court's power to make a parenting order under s 65D or grant an injunction under s 68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s 114 of the Family Law Act 1975.
…
38. We agree that s 68B is unlikely to be a source of power to directly restrain the freedom of movement of a parent.
Turning then to s 114(3) and after setting out its terms the majority said:
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent's choosing.
59.The prospect of ordering a parent to relocate and in effect "parent" in a situation not of that parent's choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
Thus, the source of power to make the injunction restraining the father from leaving Australia was s 114(3) not s 68B as his Honour seemed to find.
Lest it be thought that we make this point in a pettifogging way, it is, in our view seminal to the proper exercise of judicial discretion to understand not only the source of the power to make an order but the ambit of it.
In Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532, Gleeson CJ said that the exercise of discretion must be exercised judicially in a manner that furthers the purposes of the statutory context in which it appears. Further, Kirby J said at 538:
2. The starting point for the exercise of the discretion is a clear insight into the purpose of the provision in question within the statute and an understanding of its context. …
However, the essence of the challenge to his Honour’s order restraining the father from leaving Australia devolved not to the source of power to make the injunction or indeed the jurisdiction to make the order, but to the exercise of his Honour’s discretion in making the order. It was argued that in considering whether to make the injunction, his Honour failed to take into account matters relevant to the exercise of the discretion and thus erred.
It must first be observed that the injunction made by his Honour is unlimited as to time. The injunction is expressed to come to an end by Order 8 made on
2 July 2014 when, the mother having provided money for the airfares, some unidentified person has flown with the three children from Lebanon to Australia.
His Honour set out from [70] of the reasons of 2 July 2014 the matters considered by him in deciding to restrain the father. There, his Honour refers to the father’s submission that he wished to return to Lebanon to care for the three children living there. The father said in his affidavit (filed 6 June 2014):
23. It is necessary for me to return to Lebanon to care for our three children. The school system in Lebanon is that in the summer, which commences at the end of June, the children have 3 months holiday. This is a busy period in Lebanon. Most people have houses in the mountains, as does my family, and also homes in the valleys near or in the big cities to avoid the cold, snow and bad weather from the winters. I have land in my family village … but no house. I have built an extension on my father’s home which is a flat above the family area occupied by my mother. My family uses that flat when we go to the village. That is where we lived in 2013 during Ramadan.
Apart from noting the father’s submission that he wished to be free to return to Lebanon to care for the three children living there, the judge did not address the point.
It is curious that at [65] the primary judge found that the father had given no undertaking to return to Australia if he was permitted to leave and this was a matter relied on by the judge in determining to exercise his discretion and make the injunction, yet at [80] of the reasons of 2 July 2014 his Honour referred to spending time in Australia. At [27] of his affidavit the father did indeed give such an undertaking.
His Honour gave no weight to the father’s undertaking, given on oath, to comply with all orders imposed on him as reflected in [27] of his affidavit because his Honour said at [88] that he had no satisfaction that if the father was to leave Australia he would return and, further, at [90(b)] that he had no satisfaction that the father would bring the three older children to Australia if he were so ordered.
The fact that the father did undertake to comply with orders imposed on him against a background where it was not suggested that he had failed to comply with orders in the past, leads to the conclusion that his Honour either had decided that the father’s credibility was so wanting that his undertaking had no value or that he overlooked the undertaking and failed to give it proper consideration in deciding whether the make the injunction. Either way, he erred and this significant issue was not afforded any proper weight.
His Honour also failed to take into account the financial hardship that may accrue to the father if he was required to remain in Australia indefinitely. It was uncontentious that the father ran a business in Lebanon. His Honour made no mention of this except in passing when, rejecting an argument that the father had no funds with which to purchase air tickets for the children to be brought to Australia, said: “Age of entitlement is over. Get a job”. His Honour further failed to take into account or give any proper consideration to the undisputed fact that the father maintained two residences in Lebanon where the parties and the children lived from time to time.
His Honour concluded that the mother would “suffer significant prejudice absent such relief” if the three children in Lebanon were not brought to Australia [90(d)].
He then said:
(e) I am satisfied that the prejudice which would be experienced by
[the father] (if any) is outweighed by the prejudice [the mother] would suffer. Indeed, it is clear from [the father’s] own evidence referred to above that [the father] has willingly been present in Australia for significant periods of time for the purpose of earning income (to return to Lebanon) and claiming and obtaining social security benefits (which I will deal with at the conclusion of this judgment).(emphasis added)
By his Honour’s comment “if any” we are satisfied that his Honour has failed to take account of matters relevant and necessary to the proper consideration of whether to make the order sought.
The injunction made by his Honour, by its terms, had a significant and serious impact on the father, operating to prevent him from leaving Australia for an indefinite period. In coming to that determination, his Honour was obliged to balance the utility of the order against the possible detriment to the father.
His Honour paid scant, if any regard to the very significant matters put to him by the father’s counsel and in so doing failed to take into account relevant matters. Thus his Honour’s discretion miscarried.
This challenge is made out.
Thus, the appeals will succeed.
Conclusion
At the conclusion of the appeal hearing we made orders which allowed Appeal EA 79 in part and, as a consequence, we set aside orders 9 and 10 made by the primary judge on 2 July 2014, they being the orders referring the papers in the matter to the attention of government departments.
We will, having determined that many of the challenges to his Honour’s orders have been made out, set aside some of his orders, remake one on an interim basis and remit the matter for rehearing.
We agree with counsel appearing in the matter that given the complexity of the matter, it would be appropriate for the further hearing of this matter to be conducted in the Family Court.
Costs
As usual we sought submissions from the parties on the question of costs to save the time, trouble and expense of the parties returning or making submissions on this issue after judgment has been delivered.
Neither party sought a costs order against the other, which is entirely appropriate in the circumstances. Both parties sought a costs certificate both for the appeals and any rehearing of the matter.
In our view, that is an appropriate order to make.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Ryan JJ) delivered on 15 September 2014.
Associate:
Date: 15 September 2014
37
7
0