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7/31/2019 Garning & General, Department of Communities [2012] FamCAFC 35 (9 March 2012)
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FAMILY COURT OF AUSTRALIA
GARNING & DIRECTOR-GENERAL,DEPARTMENT OF COMMUNITIES(CHILD SAFETY SERVICES)
[2012] FamCAFC 35
FAMILY LAW - APPEAL CHILD ABDUCTION HAGUE CONVENTION Where mother challenges trial judges finding that the father did not consent to themother permanently relocating the children to Australia at any time or to their retentionin Australia Where mother asserts that the trial judge erred in rejecting the evidenceof the mother and applying the law in Jones v Dunkel(1959) 101 CLR 298 Wheremother asserts the trial judge erred in failing to give assistance to the mother and deniedthe mother procedural fairness Where mothers challenge is in turn dependant uponthe acceptance by this Court of further evidence Where application to adduce furtherevidence stands alone as an issue to be determined Where further evidence was notavailable in admissible form at the time of the Appeal Where further evidence soughtto be admitted is not in a form recognised by s 93A(2) Where the Court was notreferred to any Rule the dispensation with which could have made the evidenceadmissible Where further evidence even if admissible unlikely to have demonstratedthe order under appeal was erroneous Application to admit further evidence dismissed
Appeal dismissed.
Evidence Act 1995 (Cth) s 21Family Law Act 1975 (Cth) s 93A(2)
Family Law (Child Abduction Convention) Regulations 1986(Cth) Regulations 15, 16and 29
CDJ v VAJ(1998) 197 CLR 172
Director-General, Department of Human Services & Harries [2010] FamCA 1129Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd(2008) 217 FLR 366Jones v Dunkel(1959) 101 CLR 298ReF: Litigants in Person Guidelines (2001) 27 Fam LR 517Sheldon & Weir[2011] FamCAFC 212Wills v Australian Broadcasting Corporation (2009) 253 ALR 228
APPELLANT: Ms Garning
RESPONDENT: Director-General,Department of Communities (ChildSafety Services)
FILE NUMBER: BRC 1387 of 2011
APPEAL NUMBER: NA 59 of 2011
[2012] FamCAFC 35 Coversheet and Orders Page 1
DATE DELIVERED: 9 March 2012
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PLACE DELIVERED: Melbourne
PLACE HEARD: Brisbane
JUDGMENT OF: Bryant CJ, Faulks DCJ andColeman J
HEARING DATE: 5 September 2011
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 23 June 2011
LOWER COURT MNC: [2011] FamCA 485
REPRESENTATION
COUNSEL FOR THE APPELLANT: Mr Page SC
SOLICITOR FOR THE APPELLANT: Feeny Family Law
COUNSEL FOR THE RESPONDENT: Mr Green
SOLICITOR FOR THE RESPONDENT: Crown Law
[2012] FamCAFC 35 Coversheet and Orders Page 2
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ORDERS
(1) The Application in an Appeal to admit further evidence filed by the Appellant on
22 August 2011 be dismissed.
(2) The Application in an Appeal to admit further evidence filed by the Central
Authority on 1 September 2011 be dismissed.
(3) The appeal be dismissed.
(4) Within 21 days the Respondent file and serve written submissions in the event
they wish to seek costs against the Appellant.
(5) Within 21 days thereafter the Appellant file and serve written submissions in
response to those filed on behalf of the Respondent in relation to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonymGarningv Director-General, Department of Communities (Child Safety Services) has
been approved by the Chief Justice pursuant to s 121(9)(g) of theFamily Law Act 1975(Cth).
[2012] FamCAFC 35 Coversheet and Orders Page 3
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Appeal Number: NA 59 of 2011File Number: BRC1387 of 2011
Ms GarningAppellant
And
Director-General, Department of Communities (Child Safety Services)
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1. By Notice of Appeal filed on 5 August 2011, Ms Garning (the mother) appeals
an order made by Forrest J on 23 June 2011, that four children aged between 15
years and 8 years be returned to Italy in the company of the mother should shedetermine to return to Italy with the children and, upon receipt by her, if she
chose to return with them, of the sum of AUD$8,000, to be provided by the
father for the financial support of the mother and the children.
2. The order was made on the application of the Department of Communities (Child
Safety Services) as the State Central Authority (the Central Authority) under
the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (the
Regulations). The Regulations give effect to Australias obligations as a
signatory to the Hague Convention on the Civil Aspects of International Child
Abduction (the Convention).
3. At trial the mother who was unrepresented argued the following:
The childrens removal to or retention in Australia was not in breach of the
fathers rights of custody;
At the time of the childrens retention the father was not actually exercising
rights of custody;
The father had consented to the children coming from Italy to Australia to live
permanently in Australia;
The father acquiesced or consented to their retention in Australia.
[2012] FamCAFC 35 Reasons Page 1
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE
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If the Court found that there was nevertheless a wrongful removal then the
mother relied upon the following defences under Regulation 16(3):
That there is a grave risk that the return of the children to Italy would expose
them to physical or psychological harm or otherwise place them in an
intolerable situation (Regulation 16(3)(b));
The children object to being returned, show a strength of feeling beyond the
mere expression of a preference of ordinary wishes and have obtained an
age and degree of maturity at which it is appropriate to take account of
their views (Regulation 16(3)(c)).
4. The mother purported to rely upon Regulation 16(2)(c) that the children are
settled in their new environment but his Honour pointed out that this defence was
misconceived in that it applied only where an application was made more than
one year after removal, which did not apply in this case.5. This appeal challenges only one of the various arguments raised by the mother
before his Honour and challenges the finding that the father did not consent to
the mother permanently relocating the children to Australia at any time or to their
retention in Australia as at 20 July 2010.
6. A significant part of the challenge to his Honours finding is dependant upon the
acceptance by this Court of further evidence. The mother submits that if the
Court receives further evidence then the matter would need to be remitted to
Forrest J for determination of this issue. The Central Authority submits that if
the Court admits further evidence from the mother then it must also admit furtherevidence on behalf of the Respondent going to this issue and that the Court will
then be in as good a position as the trial judge to determine the issue without
remitting the matter.
BACKGROUND
7. His Honour included the following Brief background facts in his Reasons for
Judgment:
5. The respondent is [Ms Garning]. She was born in this country in1979 but went to study Italian language, art and culture in [City 1],
Italy, at the youthful age of 16. During that stay she fell in love with
[Mr V] when she was living as a guest of his family in the vicinity of
a small village on the outskirts of the [City 1]. [Ms Garning], at the
relatively young age of 17, married [Mr V], then taking up permanent
residence in Italy and mastering the Italian language.
6. [Ms Garning] and [Mr V] had five daughters, the third of which,
sadly, died as an infant due to birth abnormalities. The surviving four
girls are now 14, 12, 9 and 8 years old respectively.
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7. For much of their married life the couple lived in a separate half of
[Mr Vs] family villa. The other half of that villa was the residence of
[Mr Vs] parents.
8. The evidence appears to establish that after the death of their third
child, [Mr V] experienced some mental health problems, becomingdepressed. That contributed to deterioration in the couples
relationship that ultimately led to a separation in or around January
2007.
9. At that time, a serious incident of domestic violence perpetrated by
[Mr V] against [Ms Garning] precipitated the separation. [Ms
Garning] left the family villa and took up residence in an apartment in
the village. The four girls went with her, no doubt a reflection of the
principal care that she had provided them with to that point in time.
10. On the 27th of November 2008, the couple obtained what translates
into English as a consensual separation agreement with the sanction
or approval of a Judge of the law courts of [City 1].
11. By that separation agreement, the couple agreed to have joint custody
of the four girls and that the girls were to reside mostly with their
mother with visitation rights to their father on one afternoon per week
after school until after dinner and from after school each Friday until
Monday morning.
12. Soon thereafter, [Ms Garning] decided that she would prefer to returnwith the girls, to live in Australia. She was, thereafter, in regular
contact with Australian Consular staff based in the Australian
Embassy in Rome seeking their assistance to obtain Australian
citizenship for the four girls, passports for the four girls and,
ultimately, travel to Australia for permanent relocation.
13. In 2010 [Ms Garning] was able to secure [Mr Vs] consent to the
issue of passports for the four girls and on the 23 rd of June 2010 [Ms
Garning] and her daughters travelled from Rome Airport to Brisbane.
They have been in Australia ever since. Their father, however,remains in Italy and through the use of the provisions of the Hague
Convention now seeks their return.
Forrest Js Reasons for Judgment
8. First Forrest J noted the application for a return order under Regulation 15 and
that if the Court was satisfied an application for a return order was made and had
been filed within one year after the childrens removal or retention and the
Central Authority satisfied the Court that the childrens removal or retention was
wrongful under sub-regulation (1A) of Regulation 16, then the Court must makean order to return the children. His Honour observed that mandatory return is
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made subject to the conferral of discretion not to order the return of the children
if the person opposing the return of the children establishes one or more of the
matters prescribed in sub-regulation (3) of Regulation 16. His Honour then
indicated from the material put before him by the mother, he was able to discern
various contentions by her in relation to matters upon which he must be satisfiedbefore making a return order. They were:
That at the time she brought the four children to Australia the fatherwas not actually exercising rights of custody.
That the removal of the children to Australia or their retention inAustralia was not in breach of the fathers rights of custody becausehe agreed to let them come.
That, in any event, after the children came to Australia the father has
acquiesced in their being retained here.
That there is a grave risk that the return of the children to Italywould expose them to physical or psychological harm or otherwise
place them in an intolerable situation.
The children object to being returned.
(Reasons for Judgment, paragraph 25)
9. As only one of those arguments is relevant to the appeal, namely consent to the
removal of the children, we need only briefly mention his Honours dispositionof the other matters.
10. Suffice to say his Honour found that the father was a joint custodian of the
children pursuant to the consensual agreement sanctioned by a City 1 Court, that
he was actually exercising those rights of custody albeit jointly with the mother
or, at least, would have exercised those rights of custody at the time the children
were retained in Australia contrary to his wishes on 20 July 2010.
11. His Honour further determined that the father was actually exercising rights of
custody as at 20 July 2010 and that the retention by the mother of the children in
Australia at that date was in breach of his rights of custody.
12. His Honour considered the allegation about the fathers alleged consent to the
mother bringing the children to Australia on a permanent basis prior to their
removal and rejected it. As this forms the basis for the appeal we will deal with
it in more detail later in these reasons.
13. His Honour then considered whether the father had acquiesced or consented to
the childrens retention in Australia and rejected that argument on the evidence
before him.
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14. He then turned to Regulation 16(3) and found that the mother had not made out
the defence of grave risk provided for in Regulation 16(3)(b).
15. In respect of the argument that the children objected to being returned,
his Honour had before him in particular a report from a family consultant Ms E,
who had interviewed the children, and a report commissioned by the mother. HisHonour found, relying on those reports, that any objection to being returned did
not show a strength of feeling beyond the mere expression of a preference or
ordinary wishes and did not give rise to the defence.
16. His Honour pointed out that the mothers argument about the children being
settled in their new environment was misconceived as the application was made
within twelve months of the alleged wrongful removal and, finally, his Honour
indicated that if he was wrong in his determination that the mother had not made
out any of the defences he would nevertheless, in the exercise of the residual
discretion that would arise, still order a return of the four children to Italy.
17. As it forms the basis of the appeal we now turn in more detail to his Honours
treatment of the mothers assertion that the father consented to the removal of the
children on a permanent basis to Australia. It is convenient that we set out his
Honours findings on this matter (Reasons for Judgment, paragraphs 37-42):
37. The mother gave evidence that the father consented to her
bringing the children to Australia on a permanent basis prior to their
removal. She asserts, clearly, to the extent that he now asserts in
evidence that he did not, that he is not telling the truth about thatand that he has merely changed his mind after the event.
38. The fathers evidence is that the mother told him on the
telephone one day in early 2009 that she wanted to go back to
Australia, taking the four girls with her, with the intention of
allowing the father to see his daughters for a month each year. He
says that he told her that if she wanted to leave and return to
Australia she was free to do that but that his daughters would have
to remain in Italy with her being free to visit them whenever she
wanted. His evidence is that the mother persisted with her requestfor some time but assured him thereafter that she would never ask
him again. The father says that some time thereafter, around the end
of 2009, the mother again began to talk about returning to Australia
to live. His evidence is that she even began to ask him to go there
and live there with her. He denies that he expressed any interest in
doing so or intention to do so. His evidence is that the mother then
proposed to him that they both travel with the girls to Australia in
June 2010 for a visit. The fathers evidence is that he told her that
he believed that once she was in Australia with the girls she would
not return them to Italy and so he refused to sign documents
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permitting that to happen. He says that the mother assured him that
she had absolutely no intention of remaining in Australia, that she
knew that the lives of the girls were based in Italy and that she only
wanted to take them for a holiday to Australia for about four weeks.
The father says that he continued to refuse to give such permissionand then the mother arranged for him to meet with her lawyer to
discuss the subject. The fathers evidence is that they met with the
lawyer and that on this occasion the mother made it clear that she
intended to only spend one month in Australia with the girls. The
father contends that it was asserted to him that the Court would give
the mother permission to take the children to Australia for a holiday
and that, therefore, he should consent. He says, consequently, he
relented and agreed to sign the passport applications for the four
girls. He says that a few days later he met up with the mother in a
caf and [sic] their village in the presence of a very dear friend of
the mothers who witnessed his signature on the four passport
applications. He said he did all this on the expectation that the
children would be returned to him after the month in Australia to
spend the Summer holiday month of August with him before school
resumed again in Italy in September.
39. The fathers evidence goes on further to say that he asked his
employer for leave so that he could travel with the mother and girls
to Australia for the holiday but that he was unable to obtain that
leave and so was unable to make the trip. The father says that he
was aware that the mother had bought return tickets for herself and
the four girls, that they would be leaving Italy for Australia on the
23rd of June 2010 and leaving Australia to return to Italy on the
20th of July 2010.
40. The fathers evidence is that in the first week or so of the
girls visit to Australia he was able to communicate with them
readily by telephone but that after a short while his ability to
communicate with them as such became impeded. He said that theirphones were turned off, the mothers mobile phone was out of reach
and that the mother never called him. He says that when he did call
to speak to the children that he was told they were not available to
speak to him because they were either sleeping or out playing. His
evidence is that on or about the 18th of July he received a call from
the mother who told him to prepare himself for bad news and that
she and the girls were not going to be returning to Italy. He says
that he told the mother in that call that she could do what she liked
but that the girls must be home in Italy come the 20th of July. After
the 20th of July he says that he confirmed that the return ticket
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reservations with the airlines had been cancelled and that the
children were not returned to Italy. His evidence is that he then
began the process that has culminated in the application before the
Court.
41. As counsel for the central authority submitted in his writtensubmissions, there is some common ground between the mother and
the father in respect of these matters. The mother agrees that when
she initially broached the subject of returning to Australia and
taking the girls with her, that the father simply refused permission
for the girls to be relocated. The mother also agrees that she raised
with the father the prospect of the entire family, the father included,
relocating to live in Australia. The mothers evidence is that the
father did, from time to time, agree to move with the family to
Australia and on one occasion he even spent some time at herapartment on the internet looking to see what sort of work he might
be able to obtain in Australia. The mothers evidence is that,
ultimately, the father agreed to the mother taking the children to
Australia to live and signed the passport applications for the
children in the presence of her friend. The mothers evidence is that
when signing the passport applications in the presence of her friend
who witnessed the signatures on the applications, the father readily
made it clear that his agreement was to the children being relocated
permanently to Australia.
42. The mothers evidence is that once she obtained that
permission she set about obtaining the passports for the four girls as
quickly as possible and putting in place the travel ticketing
arrangements to leave for Australia as soon as possible. The mother
concedes that return air tickets were purchased for her and the four
girls and paid for by members of her extended family in Australia.
Her evidence is that the return airfares were purchased after
research revealed that such fares were cheaper than the fares for one
way tickets. The mothers evidence is, effectively, that the fatherthen simply changed his mind and determined that he wanted her to
return to Italy with the children some weeks after they had arrived
in Australia.
18. Having set out the mothers evidence his Honour observed that there were
critical matters of disputed fact the determination of which could turn the
outcome of the application. His Honour observed that there had been no cross
examination but that nevertheless the provisions of the Regulations and the
availability of defences give rise to the necessity in some cases to make critical
findings of fact in respect of evidence that is contradictory. Having cited
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relevant authorities about which there is no dispute his Honour said (Reasons for
Judgment, paragraph 48):
48. I respectfully agree with all of those observations. In this
case, I must simply look to all the evidence that is before me,
including the sworn affidavit evidence of both the mother and thefather as well as all of the other evidence that both parties have
deigned to file and rely upon.
19. His Honour then turned to an analysis of the evidence of the mother, noting that
in relation to this defence it was incumbent upon the mother to satisfy the Court
of the fathers consent; in other words she bore the evidentiary onus of proving
the defence. His Honour then dealt with the specific material relevant to this
issue (Reasons for Judgment, paragraphs 49-62):
49. The mother put into evidence many pages of documents thatshe had obtained by way of freedom of information request from the
Australian Governments Department of Foreign Affairs and Trade
(DFAT). She attached those to an affidavit that was filed by her on
the 13th of May 2011. Those documents are documents from the
Departments file in respect of its dealings with the mother and
others in respect of the mother over a number of years between the
separation of the mother and the father and the mothers return to
Australia with the children. Material in those documents clearly
reveals that the mother was seeking the assistance of the Australian
Embassy in Rome over several years. The thrust of the assistance
the mother was seeking was clearly directed at ultimate return to
Australia and relocation of the four children by the mother on a
permanent basis to Australia. Assistance was sought in the process
of having the four girls Australian Citizenship confirmed, having
passports issued for them and in organising their return. The
documents reveal that the mother made her intentions of permanent
relocation to Australia clear to Australian Embassy staff. The
mother asserted in her evidence that she had the assistance of
Australian Government officials in relocating the children toAustralia and, as I understand her submissions, she asserts that the
Court should take from that the implication that the Australian
Government has somehow sanctioned her actions even if she has
somehow wronged the father.
50. I have read through the hundreds of pages of the DFAT
documents put into evidence by the mother and have found nothing
that supports a finding that any Australian Government official
somehow knowingly assisted the mother to do something that was
wrong. On the contrary, the documents support a finding thatAustralian Government officials repeatedly made it clear to the
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mother that a permanent return to Australia which involved
relocation of the four girls to Australia would only be able to be
achieved with the informed consent of the father. The documents
also record that the mother assured the same Australian Government
officials when she obtained the fathers signature on the girls fourpassport applications that she had gained the relevant consent.
Indeed, not even the assistance of Embassy officials in helping the
mother and girls to change their flights out of Rome Airport, from
those that the father had been informed about to a different flight, is
evidence that Australian Government officials were somehow
involved in a conspiracy with the mother to do the wrong thing by
the father. The material in those documents highlights Embassy
officials concerns for the wellbeing of the mother and her
daughters, gained over dealings with the mother throughout the
years, based on the mothers reports of the fathers behaviour
towards them.
51. I do not find on the evidence contained in those documents
that any Australian Embassy officials who helped the mother did so
knowing that the mother did not have the fathers consent to remove
the girls permanently from Italy.
52. In fact, the documents put into evidence by the mother
support a finding that the mother grew more and more desperate to
remove herself and her four children permanently from Italythrough 2009 and the first half of 2010. When a person becomes
desperate, whether with objective justification or not, they can
sometimes consider that the desired end result justifies all means,
however desperate.
53. In her affidavit evidence the mother asserted that a very good
friend of hers was present when the father signed the passport
applications for the four girls, witnessed the fathers signature on
those applications and clearly heard and understood the fathers
actual consent to the mother relocating their four daughterspermanently to Australia. The fathers evidence, as already
observed, corroborates the mothers assertion that that particular
friend was present when the passport applications were signed.
54. As a matter of note, upon which I place some weight in this
process of determining where the truth lies on this disputed factual
issue, I point out that in the mothers affidavit evidence she asserted
that her dear friend who had witnessed the fathers asserted consent
would be providing an affidavit of evidence to that effect
corroborating the mothers version. No such affidavit was filed bythe mother and no explanation was given by the mother for that.
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55. I am immediately mindful of the rule inJones and Dunkel
as in Australia the principles arising out of the High Court decision
ofJones v Dunkel (1959) 101 CLR 298 are commonly termed.
According to Cross on Evidence, Butterworth, 1996, volume 1,
paragraph 12.15, those principles can be summarised as follows:[T]hat unexplained failure by a party to give evidence, tocall witnesses or to tender documents or other evidence or
produce particular material to an expert witness may (notmust) in appropriate circumstances lead to an inference thatthe uncalled evidence or missing material would not haveassisted that partys case.
56. I consider, in circumstances where the mother asserts that the
particular person is her very dear friend and that she would be
providing an affidavit in which she deposed to matters very relevantto this critical factual dispute and there is an unexplained failure to
put such an affidavit before the Court, that the rule in Jones and
Dunkelhas some application in this case.
57. Additionally, although the mother said in her evidence that
members of her extended family paid for the airfares for her and the
girls to return to Australia and that it was they who purchased the
return tickets because they were cheaper than one-way fares, no
affidavit evidence of such persons deposing to matters corroborating
the mothers evidence in that regard was filed by the mother. Again,the unexplained absence of such evidence brings into focus the rule
inJones and Dunkelin this regard as well.
58. Further, the Court had before it a report of the Courts family
consultant, [Ms E], who interviewed the four girls pursuant to an
order made by me on an interlocutory basis. That was attached to
an affidavit filed 13 May 2011. In paragraph 11 of her report,
[Ms E] says this:
[Mr Vs] position is that he consented to the children
travelling to Australia with [Ms Garning] for a holiday only.The childrens statements appear to support [Mr Vs]understanding.
59. [Ms E] does not elaborate, or give any actual specifics of
statements made by the children upon which she bases that opinion
evidence, but I consider it safe to infer that the children said
something to her to support her view that when they came to
Australia they, too, thought they were only coming for a holiday.
60. In any event, when I put [Ms Es] opinion evidence to the
mother during the course of her submission for her considered
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response, the mother clearly confirmed that her four daughters had
only been told by her that they were coming to Australia for a
holiday before they came. The mother indicated to the Court that
she had not told them that she was bringing the children
permanently to Australia because she was concerned to avoid themraising the matter with their father in such a way that might cause
him to change his mind once the mother had gained his consent for
the permanent relocation.
61. Another telling piece of evidence put before the Court by the
central authority was an article downloaded from [a Queensland]
newspaper linked website bearing the date 22 July 2010 which was
attached to an affidavit of [Ms F] filed on 10th of May 2011.
Although it is not absolutely clear to me, I infer this article appeared
at that time in that daily newspaper circulating in the area where themother and children relocated to. The article is titled Family Flees
to Safety of Coast. It reveals the story of the mother and the
children and, relevantly to the point under immediate consideration,
says this:
What followed was a delicate mission as [Ms Garning]planned a secret escape from Italy with her girls. It tookthree years and the help of the Australian Embassy in Rometo get the family out. After we divorced I knew I wanted tocome back to Australia but it was so hard to escape [Mr V],[Ms Garning] said. He would not sign the girls passportsand I had to coax him over time. I convinced him to let metake the girls to Australia for holiday and as soon as we gotto Rome the Embassy looked after us and made sure we gotout.
62. When I put that evidence to the mother for her considered
response during her submissions she told me that I should not rely
on the quote as evidence of the truth of what it contained as it was
taken out of context and she was misquoted. She gave no further
explanation.
20. Having considered this material his Honour noted that his determination of this
disputed factual issue was not based on absolute acceptance of the truthfulness of
all of the evidence deposed to by the father. His Honour noted that in one
respect at least the father had not been truthful in his evidence but that upon
weighing up all of the evidence he was satisfied that the father did not consent to
the mother permanently relocating the four girls to Australia at any time or to
their retention in Australia as at 20 July 2010. His Honour found that the mother
merely had the fathers consent to bring the children to Australia for a holiday
and that he had the expectation, engendered by the actions and words of themother, that they would be returned to Italy at the conclusion of the holiday on or
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about the 20th July 2010. His Honour specifically rejected the mothers
evidence to the contrary.
THE APPEAL
21. The Appellant does not argue that the trial judge erred in finding that the motherhad not discharged the onus upon her from the evidence before him. The
argument advanced is that his Honour wrongly rejected evidence from a witness
that was available, and that if we now admitted the further evidence in the form
of an affidavit from the person referred to, the evidence would demonstrate the
order under appeal is erroneous and require a re-hearing on the issue of the
fathers consent to removal.
22. It is convenient to set out the ground of appeal in full:
1. That in determining to apply the rule in Jones v Dunkel(1959) 101 CLR 298 to reject the evidence of the mother that a good
friend of hers witnessed the fathers consent to the relocation of the
four children to Australia the trial judge erred in that he:
(a) failed to request and receive any or any adequate
explanation from the mother as to the absence of any
affidavit from the person referred to by the mother;
(b) failed to receive any document from the mother that
might provide some evidence of the existence of such
evidence;
(c) failed to provide to the mother some opportunity to
obtain such evidence in affidavit form;
(d) failed to apply the principles applicable to persons
appearing in person;
NOTE. The mother will apply at the hearing of this appeal to adduce fresh
evidence in the form of an affidavit from the person referred to which
evidence was not reasonably available to her at the trial of this application
by reason of advice she had received from the Central Authority and theabsence of any guidance to her by the trial judge as to procedural matters.
23. In support of her application the mother filed an affidavit in which she said that
she had a document from Ms A dated 5 April 2011 indicating that she had been
present when the father gave consent to the issuing of passports for the children
to leave Italy. The mother contends that the material in the document would
support her contention that the fathers consent was to the permanent relocation
of the children to Australia.
24. The ground itself, independently of the application to admit further evidence, is
inextricably bound to it as the submissions of the Appellant contend that if the
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trial judge had identified that cogent (and we would add admissible) evidence as
available and assisted her in the admission of that evidence, the Court would then
have had before it evidence to support the contention that consent had been
given. Given the interrelationship between the asserted error in rejecting the
evidence of the mother and the further evidence sought to be admitted, we willdeal first with the assertion that his Honour erred in rejecting the evidence of
the mother and applying the law in Jones v Dunkel(1959) 101 CLR 298. We
accept nevertheless that the application to adduce further evidence also stands
alone even if the ground of appeal is unsuccessful.
Discussion
25. The gravamen of the mothers case is that there was procedural unfairness
occasioned to her by not enabling her to put before the Court the evidence of
Ms A (the witness). We characterise the complaint in this way because therewas no affidavit in admissible form sworn by the witness at the time of hearing
and, although her evidence is sought to be admitted as further evidence, we
were advised by counsel that even if we were to allow the further evidence, no
affidavit is available and, it was questionable whether the evidence is even
now in admissible form. We will deal with this aspect of the appeal later when
we deal with the question of admission of further evidence.
26. The failure to accord procedural fairness was broken down into the following
complaints which we have summarised as follows:
The trial judge was aware of the existence of evidence from a witnesspotentially crucial to the issue of whether the father gave consent to
removal of the children (Appellants submissions, paragraph 6(c));
The trial judge did not provide guidance to the Appellant (as he should have as
required byRe F: Litigants in Person Guidelines [2001] FamCA 348) as
to how she might seek dispensation from the rules for admission of the
evidence of the witness other than in the form of an affidavit
(Appellants submissions, paragraphs 10, 18 and 19);
The trial judge did not explain to the Appellant the inferences that may be
drawn as a result of the failure to produce an affidavit in acceptable form
corroborating a material aspect of her case. Had he done so she might
have sought relief from the rules and the trial judge might have taken the
document into account (Appellants submissions, paragraphs 11 and 17);
The trial judge admitted unsworn evidence from the father under Regulation
29 of the Regulations and given that Regulation 29 only applies to the
Applicant the trial judge should have exercised an inherent power to admit
the written evidence to do justice between the parties (Appellants
submissions, paragraph 6(b) expanded in oral submissions).
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27. That the trial judge was aware of the existence of evidence from the witness
potentially crucial to the issue of whether the father gave consent to the removal
of the children was not in doubt. Before turning to the matters argued in the
appeal as described, we briefly return to the grounds of appeal as drafted:
1. That in determining to apply the rule in Jones v Dunkel(1959) 101 CLR 298 to reject the evidence of the mother that a good
friend of hers witnessed the fathers consent to the relocation of the
four children to Australia the trial judge erred in that he:
(a) failed to request and receive any or any adequate
explanation from the mother as to the absence of any
affidavit from the person referred to by the mother;
(b) failed to receive any document from the mother that
might provide some evidence of the existence of suchevidence;
(c) failed to provide to the mother some opportunity to
obtain such evidence in affidavit form;
(d) failed to apply the principles applicable to persons
appearing in person.
28. We observe that this is not the correct characterisation of what the trial judge did.
Having determined that the mother carried the onus of establishing that the father
consented to the permanent relocation of the children to Australia, his Honour
then considered all of the evidence relevant to question of consent.
29. The evidence included the evidence of the father, relevant matters in the
Australian Governments Department of Foreign Affairs and Trade (DFAT) file
and the mothers evidence. At paragraph 48 his Honour said:
48. In this case, I must simply look to all the evidence that is
before me, including the sworn affidavit evidence of both the
mother and the father as well as all of the other evidence that both
parties have deigned to file and rely upon.
30. His Honour then considered the many pages of documents that the mother had
obtained by way of freedom of information request from the DFAT. Those
documents were attached to an affidavit that the mother had filed and dealt with
DFATs dealings with the mother and others in respect of the mother over a
number of years between the separation of the mother and the father and the
mothers return to Australia with the children. The mother sought to rely upon
these documents in part to establish corroboration of her contention that in
signing the passports the father consented to the children returning to Australia
permanently rather than for a holiday as he had asserted. At paragraphs 53 and
56 his Honour said:
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53. In her affidavit evidence the mother asserted that a very good
friend of hers was present when the father signed the passport
applications for the four girls, witnessed the fathers signature on
those applications and clearly heard and understood the fathers
actual consent to the mother relocating their four daughterspermanently to Australia. The fathers evidence, as already
observed, corroborates the mothers assertion that that particular
friend was present when the passport applications were signed. (Our
emphasis)
54. As a matter of note, upon which I place some weight in this
process of determining where the truth lies on this disputed factual
issue, I point out that in the mothers affidavit evidence she asserted
that her dear friend who had witnessed the fathers asserted consent
would be providing an affidavit of evidence to that effectcorroborating the mothers version. No such affidavit was filed by
the mother and no explanation was given by the mother for that.
55. I am immediately mindful of the rule inJones and Dunkel
as in Australia the principles arising out of the High Court decision
ofJones v Dunkel (1959) 101 CLR 298 are commonly termed.
According to Cross on Evidence, Butterworth, 1996, volume 1,
paragraph 12.15, those principles can be summarised as follows:
[T]hat unexplained failure by a party to give evidence, to
call witnesses or to tender documents or other evidence orproduce particular material to an expert witness may (notmust) in appropriate circumstances lead to an inference thatthe uncalled evidence or missing material would not haveassisted that partys case.
56. I consider, in circumstances where the mother asserts that the
particular person is her very dear friend and that she would be
providing an affidavit in which she deposed to matters very relevant
to this critical factual dispute and there is an unexplained failure to
put such an affidavit before the Court, that the rule in Jones andDunkelhas some application in this case.
31. His Honour then went on to consider other evidence including that the children
had said to Ms E the Family Consultant and what the mother had allegedly told
the Queensland daily newspaper upon her return to Australia, his Honour
concluded in paragraph 65:
65. Nevertheless, weighing up all of the evidence, and
particularly that which I have referred to, I am satisfied that the
father did not consent to the mother permanently relocating the four
girls to Australia at any time, or to their retention in Australia at the
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20th of July 2010. I accept that the mother merely had the fathers
consent to bring the children to Australia for a holiday and that he
had the expectation, engendered by the actions and words of the
mother, that they would be returned to Italy at the conclusion of the
holiday on or about the 20th
of July 2010. I do not accept themothers evidence to the contrary.
32. It is apparent from his Honours findings that he did not, as asserted in the
grounds of appeal, reject the evidence of the mother that a good friend of hers
witnessed the fathers consent to the relocation of the four children to Australia.
His Honours comments at paragraph 56 make it clear that he was applying the
rule inJones v Dunkel(supra) properly and merely inferring that the evidence if
called would not have assisted the mother, as he did when considering the
mothers evidence that members of her extended family paid for the return
airfares for her and the girls to return to Australia because they were cheaper thanone way fares, but producing no evidence from those family members referred
to.
33. It is clear from a reading of the whole of the Reasons for Judgment that the
application of the rule in Jones v Dunkel(supra) was not the decisive factor in
his Honours finding regarding the fathers consent. It is abundantly clear that
his Honour after weighing up all of the evidence was satisfied the mother had not
discharged the onus upon her to satisfy him as to the fathers consent.
34. Before we turn to the bases on which it is alleged the trial judge erred in applying
the rules in Jones v Dunkel(supra), it is necessary to set out how the potential
evidence from the witness came to the notice of his Honour.
35. The affidavit of the mother filed on 7 April 2011 described the arrangement of
meeting with the father in a public area to sign the passport applications for the
children which he had agreed to sign. The witness was said to have been
present. The mother contended that it was clear during the discussion that
occurred that she and the children would not be returning to Italy. She said:
We spoke of us coming to live here as a family, the perks, on possibility
of employment, housing etc. I didnt really believe he would come anddidnt really want my husband to come to Australia, though he had spoken
of it often but I knew that if he changed his mind about coming himself and
that I could get myself and my daughters here Id be able to get some work,
some financial assistance from Centrelink and more importantly the
support of my mother and my family, which I needed desperately and
which I felt would be happier, safer, more stable and supported
environment for my daughters. I thought that if [Mr V] did come I may
still find myself in exactly the same situation with him refusing to support
us financially or in any other way but I also believed that whether he came
or not I would be able to financially support my daughters alone if
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necessary, just as I have been since we arrived. However, when we finally
met at the caf he signed the passport applications with enthusiasm,
knowing and understanding very clearly that we would not be returning to
Italy unless perhaps for a brief holiday. His understanding that we would
not be returning was made even clearer when, after the meeting, [Mr V],still talking about coming to Australia to start over wanted to follow me
and the witness to my house, (continuing his enthusiasm) so he could look
at houses and possible employment options with me there to translate for
him.
I consented to his coming to my apartment only because I wasnt alone. I
was worried about his having ulterior motives, his erratic moods and mood
swings, his constantly changing his mind and really didnt know if he
would stay true to his word about us all coming to Australia. He stayed at
my apartment for about 30mins and researched the internet then left sayingit all sounded exciting. The witness to his signing the passport applications
also stayed all this time and can attest to all that Ive said. [Mr V] said he
may miss his family if he moved away from them but even asked me to
suss out the situation on work and housing for him once I arrived in
Australia. He left my house enthusiastic.
After he left [Ms A] said he had turned to her as he was leaving and with a
smug attitude said, Im not an idiot you know, I always knew they werent
coming back. We thought he must have felt she disapproved somehow that
I had discussed my plans about moving to Australia with him. [Ms A] willswear an affidavit to the fact that she was a witness to the caf meeting &
his signing of the documents as well as his actions at my house and the
comment he made to her as he was leaving.
36. Fairly early after the proceedings had commenced before his Honour and when
counsel for the Central Authority was addressing him, the following exchange
took place (Transcript 16 April 2011, page 45, lines 24-47 and page 46, lines 1-
9):
HIS HONOUR: The mother also said somewhere in her material thatwhen she got the signature of the husband - the ex-
husband on the passport applications it was then that
he knew he was signing for her to leave permanently
with the girls. His signature was witness [sic] by
another person.
MR GREEN: Yes, your Honour.
HIS HONOUR: And the mother said that that other person would
swear an affidavit to that same effect.
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MR GREEN: Yes, your Honour, with respect.
HIS HONOUR: And we havent seen an affidavit from any such other
person.
MR GREEN: No, your Honour. And can I indicate, your Honour,
as your Honour has raised that - - -
HIS HONOUR: Well, I raise it. Do you make a submission in respect
of that, that I should make anything of that?
MR GREEN: Your Honour, we havent heard any explanation at
this point. These are matters about which - I was
going to wait to hear, but since your Honour has
prompted the question - with respect, your Honour,
actually I would rather hear what - if your Honour
were to put that to [Ms Garning].
HIS HONOUR: Okay.
MR GREEN: I would rather wait to make a submission about that
when I hear what [Ms Garning] explains. But other
than to record that your Honour granted an extension
to [Ms Garning] to file further material and I
understand, although I wasnt in court on the day,made clear that the extended date was D day for the
filing of material. And notwithstanding that the
Central Authority was served with material as late as
last Friday and it did not include an affidavit from, I
think, whats called the guarantor or, effectively, the
person who witnessed the fathers signature.
37. His Honour raised this issue with the mother in the following passages
(Transcript 16 April 2011, page 77, lines 10-39):
HIS HONOUR: See, the problem for you is that you dont have any
other evidence that he actually consented to them
coming permanently, save for you saying that he did.
MS GARNING: Yes, it is my word.
HIS HONOUR: Theres not one piece of other evidence, save for you
saying, He consented to me coming permanently.
MS GARNING: It is my word against his.
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HIS HONOUR: But the extraneous evidence gives greater support to
his view of that to his evidence of that, being that he
only consented to them going on a holiday. And
youve some of the things that Mr Green has pointed
to; the extraneous evidence that Im taking about is,for example, return tickets being booked. Right?
And I understand what you say about that but
nevertheless return tickets being booked suggests
exactly what that means. Return tickets, you know
there was an expectation of return. But also [Ms E]
saying the girls confirmed that it was their
understanding that they were only coming for a
holiday, the newspaper article. So theres a there is
some evidence I wont say a mass of evidence I
couldnt possibly describe it as that but there is
other evidence of different sorts, which I call
extraneous evidence that is, other than just you
saying, He agreed to me bringing them
permanently, and him saying, No, I didnt. I only
agreed to them going on a holiday. There is other
evidence that supports his version of that.
MS GARNING: Okay, I can address - - -
HIS HONOUR: So and you and finally, just before I let you speak,
you say in your material you were going to get an
affidavit from the witness who would also say, Yes,
when he signed that he was agreeing to permanent
removal. All right.
38. The mother made submissions about other matters and returned to his Honours
question about the witness at (Transcript 16 April 2011, page 78, lines 25-44):
MS GARNING: The situation was very
difficult for them. The reason I havent received an
affidavit from the witness who did witness [Mr V]
signing the passport applications is because I did
contact her.
She has written something down. I did not
know whether that, not being sworn as an affidavit,
whether it would be accepted in court or not. It is
true that I have received random legal advice through
this whole situation but its also true that it has neveralways been followed by one lawyer so as to keep the
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flow of things regular and the situation under control
and have things presented the way they should be,
especially considering the delicate nature of this
hearing in this matter. So thats the reason I have not
presented what she has written. I didnt know if Iwas allowed to, it not being sworn in affidavit form. I
do remember, I think I was speaking to [Ms F]
outside the last hearing which was the the listing 13
April and I was told that affidavits have to be
presented in an affidavit form thats accepted in
Australia, thats why I didnt pursue that.
HIS HONOUR: You remember I told you that too because you
annexed the two phycologists (sic) reports to your
affidavit and it was pointed out that there would beobjection and you needed to get them and I told you
that day that you needed to have the attached
affidavits.
39. His Honour then gave the mother another opportunity to deal with evidence by
indicating to her (Transcript 16 April 2011, page 91, lines 29-45):
HIS HONOUR: As I say, the weight of the evidence is against you on
this issue of - you know, that he consented to you
bringing the children permanently and that that - - -
MS GARNING: I realise that issue is very iffy and its not explained
properly anywhere because thats the way - - -
HIS HONOUR: Well, look, if I can use the legal expression, the
weight of the evidence is against you. I pointed out
those other pieces of evidence that are against you on
that. And really the evidence that Ive got that he did
is you saying that he did.
MS GARNING: I realise its my word against him - against his - - -
HIS HONOUR: Well, its not just your word against him. The weight
of the evidence, the other evidence, is against you.
Its your word against other evidence, not just his.
And thats the difficulty for you.
40. Despite this discussion between his Honour and the mother, the mother did not
raise the question of the witness nor seek to provide any explanation about why
an affidavit had not been sworn.
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41. Thus, we cannot find any basis upon which his Honour failed to request or
receive any adequate explanation from the mother as to the absence of any
affidavit as submitted by her. It is clear that the mother informed his Honour that
she did not have an affidavit but at no stage did she offer any explanation as to
the reason for lack of an affidavit, merely that the witness had written somethingdown but that it was not in the form of an affidavit. Contrary to the submissions
of the mother, in our view, his Honour did give the mother an opportunity to
explain why there was an absence of an affidavit and no explanation was
forthcoming.
42. Paragraphs 1(b) and (c) of the Notice of Appeal assert that his Honour failed to
apply the principles applicable to persons appearing in person and thus denied
procedural fairness to the mother by failing to receive any document that might
provide some evidence of the existence of the corroboration from the witness
that she asserted and failed to provide her the opportunity to obtain suchevidence in affidavit form.
43. First we note that paragraph 10 of the mothers written submissions say:
10. This appeal is not based upon an assertion that the Trial
Judge breached the guidelines in respect of litigants in person
amended by the Full Court inRe F: Litigants in Person Guidelines.
(Our emphasis, footnote omitted)
44. The mother however contends that failure to follow the guidelines establishes
that in failing to give assistance to the mother that she was denied proceduralfairness. It is useful to set out those guidelines as they appear inReF: Litigants
in Person Guidelines (2001) 27 Fam LR 517 per Nicholson CJ, Coleman and
ORyan JJ at paragraph 253:
253. Finally, we think it useful to list the set of guidelines as altered by
our consideration of them above.
1. A judge should ensure as far as is possible that procedural
fairness is afforded to all parties whether represented or
appearing in person in order to ensure a fair trial;
2. A judge should inform the litigant in person of the manner in
which the trial is to proceed, the order of calling witnesses and
the right which he or she has to cross examine the witnesses;
3. A judge should explain to the litigant in person any procedures
relevant to the litigation;
4. A judge should generally assist the litigant in person by taking
basic information from witnesses called, such as name, addressand occupation;
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5. If a change in the normal procedure is requested by the other
parties such as the calling of witnesses out of turn the judge
may, if he/she considers that there is any serious possibility of
such a change causing any injustice to a litigant in person,
explain to the unrepresented party the effect and perhaps theundesirability of the interposition of witnesses and his or her
right to object to that course;
6. A judge may provide general advice to a litigant in person that
he or she has the right to object to inadmissible evidence, and
to inquire whether he or she so objects. A judge is not obliged
to provide advice on each occasion that particular questions or
documents arise;
7. If a question is asked, or evidence is sought to be tendered inrespect of which the litigant in person has a possible claim of
privilege, to inform the litigant of his or her rights;
8. A judge should attempt to clarify the substance of the
submissions of the litigant in person, especially in cases where,
because of garrulous or misconceived advocacy, the substantive
issues are either ignored, given little attention or obfuscated.
(Neil v Nott (1994) 121 ALR 148 at 150);
9. Where the interests of justice and the circumstances of the case
require it, a judge may:
draw attention to the law applied by the Court in determining
issues before it;
question witnesses;
identify applications or submissions which ought to be put to
the Court;
suggest procedural steps that may be taken by a party;
clarify the particulars of the orders sought by a litigant in
person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be
other interventions that a judge may properly make without giving
rise to an apprehension of bias. (Original emphasis)
45. It is not clear to us in relation to the guidelines therein described in what manner
it is asserted that his Honour failed to adhere to the guidelines and we observe
that neither in written submissions nor in oral submissions was that failing
identified. Having regard to the exchanges between his Honour and the mother
we cannot see any basis on which his Honour denied her the right to seek adispensation from the rules nor has the mother identified what rule might have
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been relevant to the admission of some material which was apparent to his
Honour was not in admissible form. We make the point that his Honour was not
aware of what written material there was from the witness, the mother having
only informed him that she has written something down. The mother
conceded that she had no sworn material from the witness and the mother neverproffered the document, and in our view, the mother has not pointed us to any
obligation upon the trial judge to actively seek out the document in
circumstances in which he had been informed that there was a document not in
admissible form, and no explanation for it not being in admissible form had been
proffered.
46. Thus, in our view the matters raised in grounds 1(b) and (c) of the Notice of
Appeal cannot succeed; ground 1(b), because his Honour was under no
obligation to invite the mother to hand up some written document that was not in
any admissible form and 1(c) because his Honour did not fail to provide themother an opportunity to obtain evidence in affidavit form, it is apparent that she
had ample opportunity to do so. She provided no explanation as to why she had
not.
47. In addition, in our view, his Honour did not, as submitted by the mother, fail to
make any explanation of the matters traversed in paragraphs 53-57 of the
Reasons for Judgment but did endeavour to explain on several occasions the
problem with the absence of corroborative evidence for the mother. We do not
accept as asserted in paragraph 19 of the Appellants written submissions that the
trial judge had an obligation (presumably in the course of providing a fair trial)to explain that there were provisions within the Rules for her to apply for relief
from compliance with the Rules which would have enabled her to put the
witnesss statement before the Court. First we note that his Honour had no idea
of what form such a statement was in, only that the mother had a written
document. Having given no explanation as to why she had not obtained a
document in admissible form, we cannot see that his Honour was under any
obligation to effectively invite the mother to tender a document which she had
herself asserted was inadmissible. Counsel for the Appellant has not referred us
to any Rule the dispensation with which could have made the evidenceadmissible and accordingly we do not see any merit in the ground of appeal.
48. We now turn to the question of the admission of further evidence.
Admission of Further Evidence
49. Admission of further evidence in the Family Court is governed by s 93A(2) of
theFamily Law Act 1975 (Cth) (the Act) which provides:
(2) Subject to section 96, in an appeal the Family Court shall
have regard to the evidence given in theproceedings out of which the
appeal arose and has power to draw inferences of fact and, in its
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discretion, to receive further evidence upon questions of fact, which
evidence may be given:
(a) by affidavit; or
(b) by oral examination before the Family Court or
a Judge; or
(c) as provided for in Division 2 of Part XI.
50. The question of admission of further evidence in the Family Court was dealt with
by the High Court in CDJ v VAJ(1998) 197 CLR 172.
51. The majority (McHugh, Gummow and Callinan JJ) said relevantly at paragraphs
107, 109 and 111:
107. The discretion conferred by s 93A(2) to receive further evidence on
appeal is not expressed to be limited in any way. In particular, thesubsection contains no requirement, comparable with that often
found in statutes conferring power on an appellate court to receive
further evidence, that "special grounds" or "special leave" be shown
before the evidence can be adduced. Nor, in contrast to the common
law position, must the motion to receive the evidence be designed to
set aside the verdict at first instance. Nothing in s 93A(2), for
example, prevents the respondent to the appeal from bringing a
motion to adduce further evidence to support the orders made.
109. One consideration in construing s 93A(2) is its remedial nature. Its
principal purpose is to give to the Full Court a discretionary power
to admit further evidence where that evidence, if accepted, would
demonstrate that the order under appeal is erroneous. The power
exists to facilitate the avoidance of errors which cannot be otherwise
remedied by the application of the conventional appellate
procedures. A further, but in practice subsidiary, purpose is to give
the Full Court a discretion to admit further evidence to buttress thefindings already made.
111. The power to admit the further evidence exists to serve the
demands of justice. Ordinarily, where it is alleged that the admission
of new evidence requires a new trial, justice will not be served
unless the Full Court is satisfied that the further evidence would
have produced a different result if it had been available at the trial.
Without that condition being satisfied, it could seldom, if ever, be in
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the interests of justice to deprive the respondent of the benefit of the
orders made by the trial judge and put that person to the expense,
inconvenience and worry of a new trial. (Our emphasis, footnote
omitted)
52. The mother accepts that these passages govern the basis upon which theapplication to adduce further evidence is to be determined.
53. The Central Authority had an application before the Court to receive further
evidence which they only sought to pursue in the event the Court granted the
mothers application to adduce further evidence and/or determined that as a
result of any error on behalf of the trial judge it is required to reconsider the
question of consent. An affidavit of the father and declarations from others
attached to it dealing with the issue of consent was prepared. Senior Counsel for
the mother helpfully consented to the admission of this further evidence on the
basis that the Court allowed the admission of further evidence from the mother.
54. We are not prepared to admit the further evidence for two reasons which we will
explain.
55. The first of those reasons is that it having been conceded that the evidence at trial
was not in the form of an affidavit, even before us Senior Counsel for the mother
concedes that the material sought to be admitted is still not in the form of an
affidavit, and as described by Senior Counsel for the mother is notice of the
evidence that this witness wishes to give (Transcript of proceedings 5
September 2011, lines 18-19).The task of establishing that the further evidence,if accepted, would demonstrate the order under appeal is erroneous is made
significantly more difficult when it remains unclear as to what evidence would in
fact be given by the witness proposed to be called and in what form it could be
tendered.
56. Secondly an analysis of the evidence sought to be given, accepting for the
purpose of the argument that evidence would be given in the form of a statement
now relied on, in our view cannot be supported. When considered against other
evidence in the case and other findings by his Honour which are not challenged,
in our view, it could not be said that the mother has met the test of establishingthat the further evidence would have produced a different result if it had been
available at trial.
57. Dealing with the first of those matters, the mother seeks to adduce further
evidence by way of Declaration or Affidavit of Ms [A] and filed an affidavit
on 22 August 2011 in support of that application. A number of paragraphs of the
affidavit are taken up with the explanation by the mother about why she did not
have an affidavit at trial, the information she was given about the necessity for an
affidavit, and the assertion that she was not told about the capacity to have
documents notarised for admission in an Australian Court. We do not need todeal with these matters because, accepting them at face value, it is thus apparent
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that whatever information the mother had or lacked at the time of the hearing
when she was unrepresented, was cured by the time of the appeal when she was
represented by Senior Counsel and aware of the way in which material could be
admitted. Whatever might have been her position at the time of the hearing,
there is no suggestion, nor could there be on the evidence, that the manner inwhich evidence is to be put before the Court was known to her by the hearing of
the appeal. Nothing in the affidavit of the mother indicates why the material
sought to be admitted as further evidence remains in an inadmissible form.
58. Senior Counsel for the mother conceded that the document was not sworn or
affirmed and could only be treated as a written declaration from which it should
be inferred that admissible evidence would be available (Transcript 5
September 2011, page 16, line 42). Senior Counsel for the mother contended
that the Court would have discretion to admit this even though it was not in
admissible form solely on the basis of s 93A. As it will be necessary to refer tothe substance of the written statement in relation to the second reason for our
rejection of the application it is convenient to set it out now:
05/04/2011
I under signed [Ms A], born in [City 2] on ... 1957 and resident in [City 3];declare to have been a witness between [Ms Garning] and [Mr V], the dayin which [Mr V] signed the documents to give consent to [Ms Garning] to
permanently relocate to Australia with the four daughters.
I remember the day in which I met with them at Bar Sonia, in [City 4]. [MsGarning] had asked me to witness the signatures on her daughters
passports.
That day [Mr V] seemed happier than usual and [Ms Garning] had alreadytold me that some time before he had also decided to relocate to Australia.
[Ms Garning] and I went to the bar together, when we met, we gotsomething to drink and we sat at the tables outside, then they started to talkabout the move to Australia and discussing jobs and the climate of various
zones, even about the taxes I think. I remember asking [Mr V] what wewere all doing here if you couldnt even find work here anymore. Theycould start a new life and he could even learn English. He replied that hehad already started searching for a job on internet but he troubleunderstanding properly because they were all in English, so he asked [MsGarning] if he could go to her house, once finished signing, so that shecould translate a couple of internet sites. We spoke for a while about theopportunities in general that Australia had to offer.
I remember it all very well, perhaps because I was a little surprised at
seeing him so tranquil and happy. He was very polite with me and [Ms
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Garning], he signed the documents very peacefully and honestly, to me, heseemed enthusiastic about it.
After we had signed the documents we all went to [Ms Garnings]apartment, she and I in my car and him in his. [Ms Garning] asked me to go
up with her, seeing as [Mr V] had had violent behaviour in the past and shedidnt want to be alone with him. I already knew about these episodes, [MsGarning] had spoken to me about them many times and even my daughterhad told me about some bad experiences of when she was at the [V] house,with the four daughters.
We went up in to the apartment, I remember that [Mr V] said it would bebetter if [Ms Garning] and the girls went before him as he had some thingsto fix up. However he seemed happy for them to move in the meantime andhe told me about several searches he had done on the internet for jobs and
houses. I told him that I would have come if I could! I think [Mr V] stayedfor over an hour with [Ms Garning] looking at websites that offeredemployment and looking at real estate sites.
They never spoke about living together but I think [Mr V] asked[Ms Garning] if she could look for an apartment or a house for him seeingas she would arrive before him. After [Mr V] had left [Ms Garning] told methat she was very happy about the way it went but she was however shewas worried that [Mr V] could change his mind again. I know he did thatoften regarding various things.
I remember that that day the two were talking about permanent relocation,it was obvious that it was not about a holiday, in fact that is all they spokeabout. That day [Ms Garning] also told me that the Australian embassy hadtold her that once all the signatures had been received they would see tohurry up the procedures, to have the passports as soon as possible, so as toavoid any kind of complication.
In faith,
[Ms A]
Signed
I undersigned [Ms S], born in RomeFiesole on 1985 declare the aboveaboveSignature is that of [Ms A]
Signed
I undersigned [Ms N], born in
on 1958 declare that the
Signature is that of [Ms A]
Signed
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59. This is not a document which has been sworn or affirmed or notarised in any
way.
60. It is important in our view when addressing the admission of further evidence
under s 93A(2) for there to be particularity about the evidence because of the
remedial nature of the discretion reposing in the Court. In Wills v AustralianBroadcasting Corporation (2009) 253 ALR 228 Rares J, with whom North and
Emmet JJ agreed, in relation to s 27 of the Federal Court Act 1976(Cth) which
is in identical terms to s 93A of the Act said:
52. The principles upon which the discretion to admit
further evidence in an appeal under provisions similar to s 27
of the Act may be exercised were considered by the High
Court in CDJ v VAJ (No 1) (1998) 197 CLR 172;
157 ALR 686; [1998] HCA 67 at [107][111] (CDJ). In
essence, the court is at large in considering whether, under thesection, fresh evidence ought be received, but a number of
discretionary considerations developed by the common law
may be relevant to the exercise of that discretion (although not
as binding rules in the way that the common law fixed). The
discretion is more ample than the common law provided. The
issues involved in the appeal will point to the considerations
which are, or are not, extraneous to the exercise of the power:
CDJat [108].
61. Support for that proposition was given by the Full Court in Sheldon & Weir
[2011] FamCAFC 212 where it was said at paragraph 237:
237. General principles of statutory interpretation provide further
support for the Courts conclusion that s 93A should not be
construed in the narrow manner contended for by Senior Counsel
for the respondent.
62. However, s 93A(2) is concerned with evidence, and the nature of the manner in
which further evidence on questions of fact may be given is instructive:
Section 93A(2)
(a) by affidavit; or
(b) by oral examination before the Family Court or
a Judge; or
(c) as provided for in Division 2 of Part XI.
The latter relates to the use of videolink, audiolink or other
appropriate means of giving testimony, making appearances and submissions
etc.
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63. What is instructive in this case is that the further evidence sought to be admitted
is not in a form recognised by s 93A(2), a fact which was admitted by Senior
Counsel for the mother.
64. Support for the view that the further evidence sought to be admitted must be in
the form consistent with s 93A(2) is to be obtained from the comments of theHigh Court in CDJ v VAJ(supra) at paragraph 109:
109. One consideration in construing s 93A(2) is its remedial
nature. Its principal purpose is to give to the Full Court a
discretionary power to admit further evidence where that
evidence, if accepted, would demonstrate that the order under
appeal is erroneous. (Our emphasis)
65. The problem which the mother must overcome in this case is that what is sought
to be put before the Court is not evidence in an admissible form and SeniorCounsel for the mother was not able to direct the Court to any authority which
would support the admissibility of the unsworn material sought to be admitted as
further evidence. Neither did Senior Counsel proffer the witness to give oral
evidence of what was in the unsworn document.
66. Section 21 of theEvidence Act 1995 (Cth) deals with the question of evidence of
witnesses and says:
21(1) A witness in a proceeding must either take an oath, or make an
affirmation, before giving evidence.67. The words declare in the document do not signify the deponent swears or
affirms the information contained in the document: Fastlink Calling Pty Ltd v
Macquarie Telecom Pty Ltd(2008) 217 FLR 366. As we pointed out to counsel
in argument, it would not conceivably have been difficult in the time since the
hearing for the document to have been in an admissible form. Yet it was not,
without explanation. The problem identified by the Court in argument and not
met by Senior Counsel, was that it would seemingly be impossible for the
conditions described in paragraph 109 in CDJ v VAJ (supra) to be met without
the evidence being in admissible form. That is because the admission offurther evidence is dependant on it being accepted and even then the remedial
powers of the Court would not be exercised unless that evidence demonstrated
the order under appeal was erroneous. If accepted means accepted as to its
probative value and, as the document sought to be admitted here was not sworn
evidence, it is difficult to see how it could ever have probative value when
weighed against other evidence that was sworn and in admissible form.
68. The remaining basis upon which the mother relied to support the admission of
the witnesss declaration was Regulation 29 of the Regulations. Regulation 29
provides that a document attached to or given in support of an applicationrequesting the return of a child or any document attached to or given in support
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of that application or request is admissible as evidence of the facts stated in that
application, request or document. Senior Counsel for the mother conceded that
Regulation 29 did not apply to the Appellant who was the Respondent to
proceedings but in fact the Regulation is even more limited and applies to
proceedings only in which the applicant is a responsible Central Authority. Inother words it is not the father who has the benefit of the amelioration of the
evidentiary requirements under Regulation 29 as the mother contended, but the
Central Authority. There are obvious policy reasons for such provision when
trying to obtain evidence in support of an application from a left behind parent in
another jurisdiction.
69. The mother relied upon the comments of Le Poer Trench J inDirector-General,
Department of Human Services & Harries [2010] FamCA 1129 where his
Honour, at paragraphs 146-147, discussed the admissibility of a particular
document in relation to Regulation 29:146. The Regulation creates an uneven playing field in relation to
the applicant and respondent to proceedings under the regulations.
In the administration of justice in Australia that is a most unusual
provision. This is a Court of law in which justice is to be dispensed.
While understanding the reason behind the wording of Regulation
29, the Court, in my view, needs to ensure that the regulation is not
used in a manner which was clearly not intended.
147. The operation of the regulation operates most unfairly
against the respondent mother in relation to this document. To the
extent that there is a discretion in the Court not to give weight to
that evidence I would exercise that discretion in favour of the
respondent.
70. We observe that his Honour was dealing with a very different fact scenario in
which the left behind parent was seeking to rely upon Regulation 29 in relation
to a witness in Australia where reliance upon that section was unnecessary, and
his Honour thought unfair to the respondent mother. That is not the position in
this case and we do not see that given the opportunities to have a document in
admissible form that any unfairness is occasioned to the mother
71. Even if we are wrong about the admission of the evidence in admissible form,
the second part of the test in CDJ v VAJ(supra) as expounded in paragraph 109
is that the evidence sought to be tendered, if accepted would demonstrate that the
order under appeal is erroneous. This requires us to consider whether, if the
evidence were admissible and accepted (as to its truth) it would be sufficiently
probative to render the result reached by his Honour erroneous. In our view the
evidence even if admitted does not reach that standard.
72. First, it required the witness to provide the evidence in admissible form, a matterof some conjecture and it remains speculative as to what admissible evidence
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would be given. But even if we were to adopt the most liberal view of the
statement, and assume it to be ultimately capable of admission, the statement
itself is not so clear and unequivocal that, weighed against the other evidence, it
would reasonably render the decision erroneous. The few parts of the statement
which could conceivably advance the mothers case if ultimately advanced onoath or affirmation by the proposed witness, are expressed as conclusions, which
as the terms in which they are expressed make clear, involve subjective
interpretations of words or actions which are not identified, by a person who is
sympathetic to the mothers cause.
73. Even adopting the broadest interpretation of