Garning & General, Department of Communities [2012] FamCAFC 35 (9 March 2012)

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



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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).



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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

http://corrigan.austlii.edu.au/au/legis/cth/consol_reg/flacr1986455/s2.html#requesthttp://corrigan.austlii.edu.au/au/legis/cth/consol_reg/flacr1986455/s2.html#request


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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

Garning & General, Department of Communities [2012] FamCAFC 35 (9 March 2012)

Documents

Transcript of Garning & General, Department of Communities [2012] FamCAFC 35 (9 March 2012)