Ghorbani and Saeed

[2013] FamCAFC 167

FAMILY COURT OF AUSTRALIA

GHORBANI & SAEED [2013] FamCAFC 167

FAMILY LAW – APPEAL – RECOVERY ORDER APPLICATION – Where the appellant alleged that the trial judge refused to hear, or make arrangements for the timely hearing of an application for a recovery order and gave no proper reasons for the basis of those decisions – Where both parties urged the trial judge to hear that application as a matter of urgency – Where the Full Court held that although it may not have been possible to determine the recovery order application on the day on which it came before the trial judge, there were a range of matters which could have been addressed and arrangements could have been made for an early hearing of the application – Appeal allowed – Order made by the Full Court that the application for a recovery order be listed as a matter of urgency in the Federal Circuit Court – Costs certificates granted.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Stead v State Government Insurance Commission (1986) 67 ALR 21

APPELLANT: Mr Ghorbani

RESPONDENT: Ms  Saeed

FILE NUMBER: SYC 5276 of 2013

APPEAL NUMBER: EA 133 of 2013

DATE DELIVERED:: 4 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Finn and Loughnan JJ

HEARING DATE: 30 September 2013

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 19 September 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Kenny
COUNSEL FOR THE RESPONDENT:	Ms Barnett

Orders made on 30 September 2013

1. The appeal be allowed.

2. Order 5 of the orders made by Judge Kemp on 19 September 2013 be set aside.

3. The parties’ interim applications be heard as a matter of urgency by a judge of the Federal Circuit Court of Australia as soon as possible on or after 9 October 2013.

4. The appellant’s legal representatives:

   (a)serve upon the Secretary of the Department of Immigration and Border Protection:

   (i)all applications, affidavits and orders made by the Federal Circuit Court of Australia and this court

   (ii)a copy of the reasons for judgment of this court as soon as available; and

   (b)give notice to the Secretary of the hearing date or dates as soon as available.

5. The court requests that the Secretary of the Department of Immigration and Border Protection give consideration to appearing on the next hearing date, and/or otherwise providing to the court information as to the implications for these proceedings of the decisions by the Minister for Immigration and Citizenship in respect of the appellant and child evidenced by letters dated

   
   

   13 May 2013 and 22 May 2013 which are annexed to the affidavit of the appellant filed 10 September 2013.

6. The appellant and respondent be and are hereby restrained from removing the child … , born … 2006, from the Commonwealth of Australia until further order. The court requests that the Australian Federal Police give effect to this order by maintaining the name of the child on the Airport Watch List at all points of international departure from Australia until further order.

7. There be no order for costs.

8. The respondent be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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.

9. The appellant be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ghorbani & Saeed 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 SYDNEYSYDNEY

Appeal Number: EA133 of 2013EA 133  of 2013
File Number: SYC 5276  of 2013SYC 5276 of 2013

Mr GhorbaniMr Ghorbani

Appellant

And

Ms Saeed

Ms  Saeed

Respondent

REASONS FOR JUDGMENT

1. These reasons relate to an appeal by Mr Ghorbani (“the father”) against orders made on 19 September 2013 by Judge Kemp of the Federal Circuit Court in proceedings between the father and Ms Saeed (“the mother”). The gravamen of the appeal related to a refusal to hear or to make arrangements for a timely hearing of an application for a recovery order in respect of the parties’ child and related orders. The appeal was opposed by the mother.

2. After hearing submissions from the parties’ counsel, the appeal was allowed and orders were made. These are the reasons for those orders.

Background to the making of the orders of 19 September 2013

1. It is not necessary to set out the facts in detail but some background information will aid in understanding the appeal.

2. The parties were born in Iran and were married there in either 2002 or 2004. They have one child, who was born in November 2006. The parties separated in 2008 or 2009. It is the father’s evidence that the child lived with the mother for 12 months after separation and that thereafter, from some time in 2009, the child lived with him.

3. The father and child left Iran for Indonesia in October 2012 and then travelled by boat to Australia. On arrival the father and the child spent time in detention centres in Darwin and then Sydney. In January 2013 they were released into community detention in Sydney. In May 2013 the father was provided with letters of introduction, copies of which were attached to his affidavit, for him and for the child, which recorded that the Minister for Immigration and Citizenship (as the Minister was then styled), had approved their residence at a specified address in the State of NSW. Importantly, the letters record that the approval enables the father and child “to reside only at” that address and “to move about in the community without being accompanied or restrained by a Departmental Officer.”

4. In about May 2013 the mother left Iran and ultimately arrived in Australia by boat. In about June 2013 the mother was released into community detention in Sydney.

5. Without the father’s agreement the mother removed the child from the father’s care on 10 September 2013. The child has lived with the mother since that time at an address or addresses not known to the father and she has not seen the father.

6. On the day of removal, the father commenced proceedings in the Federal Circuit Court seeking among other orders, the return of the child, an order that the child live with him in the interim, an injunction preventing the removal of the child from Australia and the entry of the name of the child on the airport watch list. The urgent concerns expressed by the father in his affidavit included his fears for the child arising from statements the mother made to him about returning with her to Iran and the danger to the child of such a return.

7. Although no formal advice has been received by either party, they understand that as a consequence of the filing of the application, the child’s name was placed on the airport watch list.

8. The application was first listed on 12 September 2013, two days after filing, with short service required by noon on 11 September. 2013. On 12 September 2013 the proceedings came before Judge Altobelli. The parties were both represented and orders were made including an order adjourning the matter “for possible interim hearing” at 9.30 am on 19 September 2013 and directing that the mother file her Response to the father’s application.

9. The mother’s Response and supporting affidavit were filed on 18 September 2013. The mother’s affidavit contained allegations of a history of controlling and intimidating behaviour by the father towards her, violence inflicted by the father on her, including recent violence and allegations of serious neglect of the child by the father. The mother asserted that she had official support for her removal of the child, in the form of advice from her Red Cross case worker.

10. The matter came back before the Court on 19 September 2013 before

    
    

    Judge Kemp. The parties were both present and represented. Judge Kemp told the parties that the matter was in the docket of Judge Altobelli but had been placed in his list because Judge Altobelli was not available. The transcript of proceedings on 19 September 2013 reveals that the matter was dealt with between 9.43 am and 9.49 am and between 11.13 am and 11.18 am. The following orders were made:

    1.Pursuant to section 68L of the Family Law Act 1975, an Independent Children's Lawyer be appointed for the child … and the Legal Aid Commission of NSW is requested to provide such representation.

    2.The parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party together with all existing orders and copies of any relevant reports.

    3.Leave is granted to the Independent Children's Lawyer to issue more than
    5 subpoena.

    4.Pursuant to s.11F of the Family Law Act 1975, the parties attend a Child Inclusive Conference with a Family Consultant nominated by the Child Dispute Section in this Registry on 9 October 2013 at 9.00am and pursuant to section 11C of the Act, such conference be reportable.

    5.The matter be adjourned to 9 October 2013 at 4.00pm for mention.

    6.Two Farsi interpreters be provided to the parties for the Child Inclusive Conference and the adjourned date.

11. It is from those orders that the appeal was brought.

Discussion of the grounds of appeal

1. The Notice of Appeal set out four grounds but they can conveniently be summarised as one complaint in relation to procedural fairness. It was the appellant’s case that the trial judge refused to hear his urgent application, made no arrangements for a timely hearing and gave no proper reasons for those decisions.

2. The effect of what fell from the trial judge on the date in question was that the circumstances warranted the usual and time honoured approach in parenting cases which have certain features, the appointment of an Independent Children’s Lawyer (“ICL”) and arrangements for the parties to attend for counselling. However, when the matter was first called before 10 am, the trial judge told the parties that he would not “be entertaining any application today referable to the matter” save for the mother’s application for the appointment of an ICL. Although the matter was mentioned again later in the day, those were the only substantive orders made.

3. The orders for counselling and appointing an ICL were entirely proper. However, the trial judge was nevertheless obliged to engage with the application made on behalf of the father in this case, being that before those things could be put in place, the child should be returned to the father. The trial judge refused to deal with that application and gave no adequate reasons for doing so. He did so in circumstances where representatives for both parties urged him to give the application a hearing as a matter of urgency. His Honour said in effect, because there was a controversy between the parties about what would be in the best interests of the child in the short term, the Court could not or would not intervene.

4. The transcript reveals the following exchange between the father’s solicitor and the trial judge:

   MS ADAMS: Your Honour, on the recovery. This is a matter where this child has lived with the father, on both cases for at least 10 months. And has been removed unilaterally by the mother.

   HIS HONOUR: Yes.

   MS ADAMS:  He’s not going to see his child at all and the child is not attending school. On the simple basis of best interests, your Honour, we sought a recovery.

   HIS HONOUR: Well Ms Adams, if it was that clear, the mother would consent, would she not?.

   MS ADAMS: No, your Honour.

   HIS HONOUR: Yes.

   MS ADAMS: Why would she consent?

   HIS HONOUR: Well …

   MS ADAMS: She has removed the child.

   HIS HONOUR: Yes, but if it was so clear it was in the best interests of the child, why wouldn’t the mother consent?

   MS ADAMS: Well, that’s why we have a court, your Honour.

   HIS HONOUR: Exactly. And why would the court intervene until it knows all of the information it wants to consider?

   (Transcript, 19 September 2013, p 6, line 19 – 47)

5. The proposition that if something would be in the best interests of a child then the parents would agree to it, cannot stand. As Ms Adams implied, if that was the case, there would be no need for Courts.

6. The trial judge could have, in a sentence or two, addressed the competing allegations, and if thereafter he was still minded to make no order, could have said he was not confident on that material or needed more evidence to establish that ordering the return of the child to the father would address the competing concerns. Even short of that, if the judge had made arrangements for an urgent hearing shortly thereafter, there may have been no basis for appellate intervention.

7. However, because the trial judge neither engaged with the principal issue nor arranged to do so in a suitable time frame, this Court was entitled and obliged to step in.

8. The complaints giving rise to the appeal were for the most part conceded. It was agreed that on 19 September 2013 both parties told the Court that the matter required urgent attention. It was agreed that the father’s solicitor was not permitted to make the submissions she wanted to make and that her attempts to make those submissions were severely curtailed by the Court. It was common ground that the urgent applications were adjourned for mention at

   
   

   4 pm on 9 October 2013 and that the trial judge foreshadowed that they might not be heard during 2013. Reference was made by counsel for both parties to the judgment of Kirby J in Allesch v Maunz (2000) 203 CLR 172 where his Honour referred to the importance of procedural fairness:

   It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”.

   (Footnotes omitted)

9. While conceding the father’s complaints, the respondent did not concede the appeal. The submission made on behalf of the respondent was that there was no practical harm arising from the approach and orders of the trial judge on

   
   

   19 September 2013.

10. In Stead v State Government Insurance Commission (1986) 67 ALR 21 the High Court said at 23 et seq:

    For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

    Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.

11. As counsel for the appellant submitted (and indeed as the father’s solicitor may have submitted on 19 September 2013 had she been permitted to make submissions), the father had a number of practical grievances. They include:

    ·    He had been the child’s primary carer for a significant period and now did not know where his daughter was living or the circumstances of her care;

    ·    No arrangements were in place for him to spend time with the child;

    ·    It appeared that the child was not attending school and there was no indication that she would attend school before the matter was given Court attention; and

    ·    The removal of the child meant that she was not living in accordance with the conditions of her community release and the father did not know what impact that might have on his immigration status or that of the child.

12. In those circumstances it was not sufficient for the trial judge to decline to hear the urgent applications, to adjourn the matter to 4 pm on another day “for mention” only, and to foreshadow that the urgent issues might not be heard until next year. That left the parties without a resolution of their urgent applications and without any expectations that there would be a timely hearing of their applications.

13. It is far from clear that even if the merits of the applications had been given some attention on 19 September 2013, the Court would have been in a position to grant or dismiss the application for a recovery order on that day. However, some matters could have been easily addressed. There could have been an exploration of the child’s attendance at school; the conditions under which time could be spent with the father; an injunction could have been made to prevent the removal of the child from the jurisdiction; orders could have been made to crystallise the issues about the immigration status of the family members; an opportunity could have been afforded to the parties to obtain corroborative evidence.

Conclusion

1. Although both parties asserted that the matter was urgent, the trial judge did not hear the father’s application or make arrangements for a subsequent hearing in a reasonable time frame and he did not give any reasons for those decisions. The urgent concerns identified by the father were removal of the child from Australia and into real danger in Iran and the child not attending school, but other urgent concerns were apparent on the material. The trial judge refused to engage with the issues and would not allow submissions to be made which would identify the father’s concerns. In those circumstances the appeal was allowed.

2. We considered that the only order made by his Honour that we should set aside was Order 5 which adjourned the proceedings to 4 pm on 9 October 2013 for mention. In place of that order we made an order for an urgent hearing of the parties’ applications on or after 9 October 2013 (by which date an ICL will have been appointed and counselling will have taken place).

3. We also considered it necessary to ensure that the Department responsible for immigration matters had notice of the proceedings and the opportunity to intervene, or at least advise the Court of the immigration implications for the child and her parents of any orders made in the proceedings.

   
   

   As should emerge from what we have already said, that was a very significant issue in the case.

4. Finally, we considered it appropriate to grant the injunction originally sought by the father to prevent the removal of the child from Australia, and to ensure that the child’s name is on the “watch list”. With respect to his Honour, these were the minimum measures that could have been taken on 19 September 2013.

5. While the appeal has been allowed and other orders made, including remitting the matter to the Federal Circuit Court, nothing said in these reasons should be taken to be overly critical of the trial judge. The trial judge was placed in an unusual and difficult position. Another judge was suddenly not available and on top of what was already an onerous judicial load, came additional matters from the list set for that judge.

6. In any event, the proceedings involve an application for urgent orders and for obvious reasons it is rare that appellate intervention is practicable, even if appropriate in respect of decisions made in urgent circumstances in the busy lists of a trial court.

1. We also accept that some things can be lost when the transcript of a hearing in a busy list is studied in the cold light of an appeal and that every allowance must be made for the practical experience and sound judgment that is brought to bear, often in only a few minutes, in such circumstances.

2. That said, a failure to engage with the issues in a case represents a denial of access to a Court. By the adjournment of the father’s application, it was in effect, dismissed. On another day the judge might have made arrangements to give the matter some brief time later in the day, in the next day or so or made arrangements for the matter to be listed in that time frame before another judge.

3. None of the matters of which we are aware establish conclusively that the trial judge should have granted a recovery order on the day or done much more than facilitate a later hearing. For example, there are obvious questions raised in the evidence about the immigration status of the parties and the child and the impact of that issue on the orders that might be made.

Costs of the Appeal

1. Having regard to the submissions made in relation to costs at the conclusion of the hearing of the appeal, no orders were made as between the parties and costs certificates were granted with respect to the costs of the appeal.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Full Court (Bryant CJ, Finn and Loughnan JJ) delivered on 4 October 2013.

Associate:

Date: 4 October 2013