Forgery of parental consent alleged

The following is annotated. For full case: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCCA/2015/3522.html?stem=0&synonyms=0&query=family%20law%20act

Conclusions

34. The Full Court of the Family Court held in Goode & Goode^[48] that a Court at first instance in an interim hearing must consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:
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    (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).^[49]

35. It is certainly the case that the parties’ affidavits give two completely different accounts of the issues.
36. It is the Father’s case that:
    1. He was unaware of the Consent Orders made in the Local Court on 1^st July 2013 until he came to Court on 12^th October 2015, the first return date of his Application;
    2. He did not sign any documents for the Registry of Births, Deaths and Marriages consenting to a change of the children’s surnames from “Goel” to Goel-Mahla”;
    100. He did not sign the application forms to renew the children’s passports; and
    4. He did not know about the Mother’s plans to leave Australia permanently.
37. It is the Mother’s case that:
    1. The Father signed the Minutes of Consent Order in 2013 prior to his leaving for India;
    2. The Father signed the necessary forms to change the children’s surnames, which she couriered to him at an address in India, and returned them to her;
    100. The Father signed the application forms to renew the children’s passports on 11^th September 2015; and
    4. She provided to the Father full details of her proposal to travel with the children out of Australia and her whereabouts when she had gone.
38. Neither party gave oral evidence, as is usually the case in an interim hearing. Indeed, the Mother was not even in Court, as she remained out of Australia. It was, therefore, not possible to test the Mother’s evidence by cross-examination. The Mother’s solicitor did not seek to cross-examine the Father.
39. What can be done is to compare the parties’ evidence in their affidavits. The Father’s account appears to be plausible. The Mother’s account, however, contains a number of improbabilities.
40. If it is the case that the Father consented to the parenting Orders made in the Local Court, the question arises why he did not seek to vary or discharge those Orders in his original Application, filed on 8^th October 2015. As he was at all times represented by a solicitor, it is a reasonable inference that the solicitor would have at least made reference to those Orders of 2013.
41. It is curious that, as the Mother deposes, an unnamed solicitor from Legal Aid at (omitted) told her on 16^th September 2015 that she was at liberty to take the children out of Australia without the consent of the Father if there were parenting Orders in force, unless she did not mention this fact to the solicitor.
42. If, as the Mother deposes, the Father was controlling and violent, it is surprising, to say the least, that he obligingly signed the forms that the mother couriered to him in India to change the children’s surnames to “Goel-Mahla” and sent them back to her in Australia.
43. If the Father did indeed consent to the children’s surnames being changed, it is surprising that he did not refer to them by the changed surnames in his Application filed on 8^th October 2015.
44. If the Father was such a controlling and violent person as the Mother deposes, it is surprising that he obligingly signed the passport application forms on 11^th September 2015. Why, too, did he need to do so if the Mother had sole parental responsibility for the children, as provided by the Consent Orders of 1^st July 2013? Section 11 of the Australian Passports Act 2005(Cth) requires each person who has parental responsibility for the child to consent to the issue of a travel document for the child (s.11(1)(a)). The Mother had sole parental responsibility for the children.
45. If, as the Mother deposes, the Father was fully aware of her plans to travel out of Australia with the children, why did he need to send her an email on 21^st September 2015 saying:
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    hello. where are you.

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can you please call me I need to speak to you.^[50]

46. Again, after he received the Mother’s reply, why did the Father need to send an email saying:
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    how long have you gone for? Are kids ok and healthy?^[51]

47. The Mother told the Australian High Commission in her email, the Father had “complete information” about her whereabouts and those of the children, but her email to the Father said only:
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    I am overseas I can’t ring don’t have roaming^[52]

48. That statement can hardly be described as “complete information”. It does not even say what country she was in, only that she was “overseas”. If the Father knew of her plans beforehand, why did the Mother not refer to this fact in her email?
49. If the Mother feared that the Father was “planning something” against her, why did this cause her to cancel her plan to take up employment in (country omitted) and remain in India? The Mother deposed that she feared for her safety from the Father’s extended family in India, yet she chose to remain there rather than go to (country omitted).
50. If, as the Mother claims, the Father is a controlling and violent person who knew of her plans to leave Australia with the children, why did he wait until she had left before taking any action to stop her?
51. The Mother’s account in her affidavit is eminently implausible. I am satisfied that it is in the children’s best interests to make the parenting orders sought by the Father, including issuing a Recovery Order and placing the children’s names on the Family Law Watch List maintained by the Australian Federal Police. The term “Airport Watch List” is a misnomer, as the Family Law Watch List applies both to airports and seaports.
52. I am not satisfied that the Court should make the declarations sought by the father in the Amended Application that:
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    …the mother forged the father’s signature on the Passport Applications for the children in September 2015

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…the mother forged his signature on a Court Order dated 3 September 2013…the mother is in breach of Section 65Y of the  Family Law Act .

53. These are allegations that the Mother has committed criminal offences. The Federal Circuit Court does not have a criminal jurisdiction. A finding that a person has committed a criminal offence must be made by a court of competent jurisdiction beyond a reasonable doubt. This Court is dealing with an application for interim orders where the evidentiary standard is the balance of probabilities. It is not in my view competent for this court to make those declarations.
54. Similarly, I am not satisfied that the Court should exercise its discretion under s.68B of the  Family Law Act  to issue an injunction restraining the mother “from entering or remaining in any place of residence or education of the children, harassing, stalking, intimidating or otherwise approaching or contacting the father and the children”. Notwithstanding the Father’s evidence, I am not of the view that the evidence is sufficient to find that the welfare of the children requires such a draconian order or that there is any basis for a fear that the Mother will harass, stalk, intimidate or otherwise approach the Father.
55. For the same reasons, I am not satisfied that the Court should authorise a police officer to arrest the Mother without a warrant under the provisions of section 68C of the Act.
56. I am satisfied that the injunctive orders sought against property at Property F should be made. It is clear that the Father is not seeking property orders and, in any event, a property application would appear to be out of time under s.44(3) of the  Family Law Act . The orders sought are by way of security for costs.
57. The allegations by the Father are of sufficient seriousness that I propose to request the Principal Registrar to forward a copy of these Reasons For Decision to the Commonwealth Director Public Prosecutions.