BAXTER and FRANCO AMON

[2017] FCWA 89

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: BAXTER and FRANCO AMON [2017] FCWA 89

CORAM: O'BRIEN J

HEARD: 9 MARCH 2017, 8 MAY 2017 & WRITTEN SUBMISSIONS

DELIVERED : 7 JULY 2017

FILE NO/S: PTW 6759 of 2016

BETWEEN: MR BAXTER

Applicant

AND

MS FRANCO AMON
Respondent

Catchwords:

PARENTING - where the applicant seeks a declaration that the retention by the respondent of the child in [Country A] is wrongful - where proceedings are on foot in [Country A] both pursuant to [Country A’s] law and pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction - where the respondent seeks to set aside order of a Magistrate for return of the child to Australia and stay of proceedings pending determination of the Hague proceedings.

INTERIM FINANCIAL PROCEEDINGS - where parties agree that a particular property should be sold but disagree as to which party should control sale, and as to the interim distribution of proceeds.

Legislation:

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr M Nicholls QC

Respondent: Mr M Berry SC

Solicitors:

Applicant: Clairs Keeley

Respondent: Westminster Lawyers

Case(s) referred to in judgment(s):

Banks & Banks (2015) FLC 93-637

Bondelmonte & Bondelmonte (2016) 91 ALJR 402

Eaby v Spealman (2015) FLC 93-654

Henry v Henry (1996) 185 CLR 571

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The matters before the court for determination are the applications for interim relief contained in the Form 1 filed by [Mr Baxter] (“the husband”) on 3 November 2016, his Form 2 application in a case filed on 3 March 2017 and the Form 1A response filed on 7 March 2017 by [Ms Franco Amon] (“the wife”). The husband also filed a minute setting out the relief sought at the hearing.

2The husband seeks:

(a)a Declaration pursuant to regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Abduction Regulations”) that the retention by the mother of the child, born [in] 2014 (“[the Child]”) in [Country A] was wrongful;

(b)permission to use documents from these proceedings in any judicial or administrative proceedings to secure the return of [the Child] to Australia or otherwise in relation to [the Child’s] care and welfare;

(c)orders for the sale of a property owned by the wife [at address A] (“[Property A]”), on the basis that he be appointed the trustee for sale and receive from the proceeds the sum of $100,000.00 to be “characterised subsequently in respect of costs” with the balance to be held pending further order; and

(d)an order that the wife pay his costs in any event in relation to his efforts to serve her with documents.

3The wife seeks:

(a)discharge of the order made on 23 December 2016 by Magistrate Osborn, requiring her to return [the Child] to Australia;

(b)a stay of the husband’s substantive application for parenting orders, pending the determination in [Country A] of the application brought by him in that country under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Abduction Convention”);

(c)liberty to sell [Property A] and pay to herself the sum of $100,000.00 with the balance to be held pending further order or agreement;

(d)orders requiring the husband to make available various personal items for collection by her nominee;

(e)procedural orders to progress the financial proceedings between the parties; and

(f)costs.

Background

4The parties began living together in 2010 or 2011 and were married in September 2013. The Child is their only child. They separated in December 2014, very shortly after the Child was born, and the Child remained in the primary care of the wife. The Child spent time with the husband by agreement.

5In November 2015, with the consent of the husband, the wife left Australia with the Child to travel to Country A. The asserted purpose of the wife’s trip was to spend time with relatives and to deal with some issues relating to her assets in that country. It was agreed prior to the wife’s departure that she and the Child would return to Australia on 14 January 2016.

6The parties remained in communication while the wife was in Country A, by telephone and text message. Various of those messages were in evidence; they confirmed not only that the husband continued to expect that the wife and the Child would return to Australia as scheduled, but also that the wife encouraged him in that belief. The tenor of the messages from both parties was friendly and respectful. In making that observation I acknowledge the untested assertion by the wife that the messages placed in evidence by the husband were at best selective.

7At the wife’s request, the husband forwarded to her the Child’s birth certificate. On his evidence, she told him that she required that document to finalise some of her financial matters in Country A. That evidence is supported by the content of a text message from the wife to the husband sent on 19 January 2016 in which she said:

Ive (sic) tried but the document will not be accepted, please get a certified copy and post it to me urgently… The quicker I get this finished the sooner we can go back to Australia.

8On 19 February 2016, the wife informed the husband that she did not intend to return the Child to Australia.

9On 23 February 2016, the husband lodged with the Australian Central Authority his application to secure the return of the Child pursuant to the Abduction Convention. There were considerable delays in the interaction between the Australian Central Authority and the Central Authority in Country A. The evidence supports a conclusion that those delays were outside the husband’s control and that he did what he could to advance matters as quickly as possible. The husband’s application was eventually commenced in [Canton A], [Country A] on 25 January 2017.

10In the meantime, the husband had commenced the present proceedings in this Court, by his application filed on 3 November 2016. His affidavit evidence in support of that application set out the difficulties he had encountered in pursuing his application pursuant to the Abduction Convention and his concern that the proceedings pursuant to the Convention would not be formally commenced within the relevant time limit. He sought an order that the Child be returned to Australia. Unsuccessful attempts were made to serve the wife prior to the initial hearing on 23 December 2016.

11At the hearing on 23 December 2016, Magistrate Osborn made an order requiring the wife to return the Child to Western Australia and gave her liberty to apply in relation to that order on short notice.

12Unbeknown to the husband, the wife had herself commenced proceedings in Country A on 31 October 2016 seeking “preventative measures” pursuant to the relevant family law in that country. On 11 November 2016, the relevant court in [Parish A], Country A accepted jurisdiction inter alia and made a provisional declaration to the effect that the Child was habitually resident in Parish A. The wife’s documents in relation to that application were not served on the husband until 12 April 2017.

13On 29 April 2017, the husband’s [international] lawyers filed an application to the court in Canton A in effect seeking the consolidation of his application with that filed by the wife in Parish A. That application has yet to be progressed.

14There are accordingly three separate sets of proceedings on foot:

(a)the proceedings in this Court, in which the husband seeks parenting and financial orders and the wife seeks financial orders only;

(b)the proceedings commenced by the wife in Parish A, seeking orders under Country A’s family law; and

(c)the proceedings commenced on behalf of the husband in Canton A, seeking orders for the Child’s return to Australia pursuant to the Abduction Convention.

15The wife seeks the stay of the parenting proceedings which are on foot in this Court, saying that they should not appropriately proceed until the husband’s application pursuant to the Abduction Convention has been determined. She says that she will defend that application by seeking to establish the relevant exception pursuant to Article 13 of the Abduction Convention; that there is a grave risk that the return of the Child would expose him to physical or psychological harm or otherwise place him in an intolerable situation. She argues further that in the event she establishes that exception and the Child is not returned, the substantive parenting proceedings would more appropriately proceed in Country A.

16The husband opposes the application for a stay of the parenting proceedings.

17Both parties propose that the property proceedings in this Court should continue. They agree that [Property A] owned by the wife should now be sold; they disagree as to the control of that sale and the appropriate distribution of the proceeds on an interim basis.

Proposed declaration pursuant to the Abduction Regulations

18Regulation 17 is in the following terms:

1.On application, a court may by order declare that:

(a)the removal of a child from Australia to a convention country; or

(b)the retention of a child in a convention country;

was wrongful within the meaning of Article 3 of the Convention.

19Article 3 of the Abduction Convention is in the following terms:

The removal or the retention of a child is to be considered wrongful where –

(a)it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

(b)at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in Article 3(a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

20In order to make the declaration sought, accordingly, I must be satisfied that:

(a)The Child was habitually resident in Australia immediately before his retention by the wife in Country A;

(b)his retention in Country A was in breach of the husband’s rights of custody; and

(c)the husband was exercising those rights at the time of the retention, or would have exercised them but for the retention.

21It is common ground that the Child was habitually resident in Australia immediately before his retention by the wife in Country A. He was born here, and pursuant to the joint decision of his parents lived here at all times prior to the wife’s departure with him to Country A. It is also common ground that the agreed position in relation to that departure was that it was to be temporary, and that the retention of the Child in Country A by the wife was both contrary to that agreement, and over the strong objection of the husband.

22Sensibly, while his instructions did not permit him to consent to the declaration sought, Senior Counsel for the wife did not gainsay the proposition that the husband had rights of custody at the relevant time, that the retention of the Child in Country A was in breach of those rights, and that the rights were being exercised by the husband at the relevant time.

23Section 61C of the Family Law Act 1975 (“the Act”) provides that, subject to any order of a court for the time being in force, each of the parents of the child who is not 18 has parental responsibility for the child, notwithstanding any changes in the nature of the relationship of the parents. At the time of the retention, there were no parenting orders in force in relation to the Child.

24Section 61B of the Act provides that “parental responsibility” means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. Parental responsibility includes the power and authority to determine where the relevant child lives.

25There is accordingly no doubt that the husband had rights of custody in relation to the Child at the relevant time and that the retention of the Child in Country A was in breach of those rights.

26It is not in dispute that the husband was exercising his rights of custody in relation to the Child prior to the retention, or that he would have continued to exercise them were it not for the retention.

27The necessary grounds for the declaration sought are established. I propose to make the declaration.

Permission to use documents from these proceedings in the proceedings in Country A

28Neither counsel addressed this aspect of the husband’s application in their submissions at the hearing before me.

29I do not perceive this aspect of the husband’s application to be contentious. In any event, I consider it appropriate for both parties to have the opportunity to (potentially at least) reduce their legal costs by avoiding to the extent possible duplication of the work involved in preparing documents. No reason was advanced, nor does one come to mind, as to why it would be inappropriate to allow them to make use of documents from these proceedings in the proceedings [in] Country A to the extent that is permitted by Country A’s law.

30I propose to grant to both parties the permission sought by the husband.

Stay of the Australian proceedings

31The wife seeks a stay of the parenting proceedings in this Court, pending determination of the husband’s application in Country A pursuant to the Abduction Convention. She expressly does not seek a permanent stay of the proceedings in this Court, by reference to the parenting proceedings commenced by her in Country A.

32The wife’s argument is simply put. She contends firstly that the commencement of proceedings in this Court by the husband, at a time when he had already commenced proceedings pursuant to the Abduction Convention in Country A, was prima facie vexatious. Secondly, she argues that in any event the parenting proceedings here should await the outcome of the Abduction Convention proceedings in Country A, as the determination in those proceedings of the issue of whether the Child is to be returned to Australia will inform if not determine any dispute as to whether the substantive parenting proceedings should continue here or in Country A.

33Senior Counsel for the wife referred to the decision of the High Court in Henry v Henry (1996) 185 CLR 571 (“Henry”) in which the High Court considered the application to family law proceedings of the test enunciated in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”). He relied on the observations of the High Court in Henry at p 591 as follows (citations omitted):

“It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of [Australia] if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of “seriously and unfairly burdensome, prejudicial or damaging” or, vexatious, in the sense of “productive of serious and unjustified trouble and harassment”. And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

34The tests explained in Henry would apply were the matter for present determination an application for a permanent stay of the proceedings in this Court, based on an assertion that this Court is a “clearly inappropriate forum”. In my view the tests do not apply to a consideration of the relief presently sought by the wife. It is not seriously contended by her that this Court is a “clearly inappropriate forum”, at least at this time, given that the question of whether the Child is to be returned to Western Australia has yet to be determined. In any event, regardless of what might be argued to be the prima facie position, the husband’s commencement of proceedings in this Court has been adequately explained.

35The true question for determination in the present circumstances is whether these proceedings should be stayed to await the outcome of the proceedings in Country A pursuant to the Abduction Convention. That question is not founded on a proposition that this Court is a clearly inappropriate forum; rather, it is founded on a pragmatic argument as to the extent to which the parenting proceedings in this Court should proceed towards trial when the question of the Child’s return to Western Australia has not been determined.

36To a significant degree, the argument is moot. Neither party is yet able to tell me when the Abduction Convention proceedings are likely to be heard and determined. Given the underlying principles of the Abduction Convention, it is to be hoped and expected that those proceedings would be completed well before a trial date could be allocated to the present parenting proceedings in this Court, but I have insufficient information to determine whether that hope and expectation is misplaced.

37It should be remembered also that the wife herself seeks financial relief in this Court. She does not seek any stay of the financial proceedings; by implication at least, she seeks that they proceed in the normal course. The proposition inherent in her present application, therefore, is that the parenting proceedings be stayed for an uncertain period and then either resumed, or permanently stayed, at the end of that period but that in the meantime the financial case progress independently.

38That proposition has no attraction in circumstances where the end result may be parallel proceedings between the same two parties in this Court, progressing on different timetables towards potentially two separate trials.

39With that in mind, and noting that in a practical sense the parenting case in this Court will not significantly progress until there is either a determination of the Abduction Convention proceedings, or at the least clarity as to the likely timing of that determination, I decline to stay the parenting proceedings.

The wife’s application to set aside the return order

40This aspect of the wife’s application seeks a parenting order, as that term is defined in s 64B of the Act. It falls, therefore, to be determined in the same way as any application for a parenting order. The wife does not bear any particular onus arising from the fact that her application seeks to set aside an existing order, given that the order in question was made on an ex parte basis and subject to an express provision granting her liberty to apply to set it aside.

41I am satisfied in the particular circumstances of this case that it would not be appropriate for the presumption of equal shared parental responsibility otherwise required by s 61DA of the Act to be applied in making the interim orders sought. There are as yet untested allegations of family violence and exposure of the Child to that violence. Neither party seeks interim orders for either equal shared parental responsibility or for that matter, sole parental responsibility. The uncontested facts make it clear that there is no sensible prospect in the short term at least of the parties consulting with each other and making cooperative decisions in relation to any major long-term issues regarding the Child; indeed, one of the most fundamental of major long-term issues, the country in which the Child is to live, is at the heart of their dispute.

42The wife’s application to set aside the return order, therefore, is to be determined by having regard to the objects of Pt VII of the Act and the principles underlying it, with the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, the court must consider the primary and additional considerations set out in s 60CC of the Act. While those matters are divided in the legislation into primary and additional considerations, the primary considerations do not necessarily outweigh any combination of the additional considerations.

43The law applicable to the determination of an interim parenting application does not differ from the law applied at a final hearing (other than, as in this case, in the consideration of whether or not it is appropriate to apply the presumption of equal shared parental responsibility). Nevertheless, the court must be aware of the nature of an interim hearing. The circumscribed nature of an interim hearing means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. That does not, however, mean that merely because facts are in dispute the evidence on the topic must be disregarded and the case determined only on agreed facts.

44Rather, findings made at an interim hearing should be couched with circumspection, acknowledging that the court will sometimes have little alternative but to weigh the probabilities of competing claims of the likely impact on the child in the event that an assertion, which is in dispute, is either acted upon or for that matter rejected. In circumstances where much of the evidence is in conflict and cannot be tested in the context of an interim hearing the court must be acutely aware of the limitations inherent in the abridged process: Eaby v Spealman (2015) FLC 93-654.

45It is for that reason, and not because of any potentially misguided reference to or reliance upon a “status quo” that the court must exercise particular caution in considering whether to make interim orders which would necessarily effect significant changes in the child’s present circumstances.

46I note also the observations of the Full Court in Banks & Banks (2015) FLC 93-637 at [48] to the effect that in parenting proceedings “it will be the issues that are joined that will dictate which s 60CC factors are relevant…” and that interim parenting proceedings “should be confined to those issues which, in the best interests of the child, required determination prior to a proper determination at trial…” (original emphasis).

47The Full Court confirmed at [50] that the requirement to “consider” each factor does not mean each must be discussed and that in cases where “…it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors…”.

The proposals of the parties

48The wife proposes that the Child continue to live with her in Country A in the circumstances set out in her case information affidavit filed on 7 March 2017. In that affidavit, she deposes to having been the Child’s primary carer since his birth. The Child has been living with her in Country A for over 12 months and does not, on her evidence, attend childcare. The wife says that her mother cares for the Child during the “few hours” she works each week; elsewhere in her evidence she says that she works 10 hours per week on average.

49The husband proposes that the court dismiss the wife’s application for an order discharging the order made on 23 December 2016, by which she was ordered to return the Child to Western Australia. In his initiating application filed on 3 November 2016, he seeks an interim order that the Child live with him and spend time with the wife “as is deemed appropriate” by the court.

50While that remains the husband’s proposal in a formal sense, nowhere in the various affidavits filed by him in the proceedings to date does he set out any proposals for the Child’s care on an interim basis should the orders sought by him be made.

51There is no evidence to suggest that the current arrangements for the Child’s care are in any way unsatisfactory other than in relation to one central and very important issue – the fact that the Child is in Country A and unable to spend time with his father.

52It is understandable in those circumstances that the husband would seek to retain the benefit of the order made on 23 December 2016 and that he would seek to have a “string to his bow” additional to any success he may achieve in the proceedings under the Abduction Convention. He cannot sensibly be criticised in that regard, nor do I discount or disregard his allegations as to both the wife’s motivations for her actions and what he would assert to be her efforts to avoid service and delay the progress of the proceedings in both countries.

53In certain circumstances, considerations of that nature can appropriately be taken into account in determining what parenting order is to be made: Bondelmonte & Bondelmonte (2016) 91 ALJR 402. That must, however, again be approached with circumspection in an interim hearing where, as in this case, the facts relevant to those considerations are very much in dispute and the evidence untested.

54Similarly, the wife’s allegations of family violence are strenuously denied by the husband and the evidence in relation to those allegations is untested. That said, the need to protect the Child from physical or psychological harm from being subjected to or exposed to family violence does not influence a consideration of the appropriate interim order to be made on the issues as presented by the parties. That is so for two reasons; firstly, the formal application by the husband for an interim order that the Child live with him is totally unsupported by any proposals for the Child’s day-to-day care and is accordingly doomed to fail. Secondly, the wife’s allegations of family violence do not in my view support her application for the current return order to be set aside unless the Child was to return to Australia without her and be placed in the husband’s care; were she to return to Australia with the Child, appropriately protective orders could be made.

55The considerations under s 60CC of the Act which are relevant to the interim determination to be made are:

(a)the benefit to the child of having a meaningful relationship with both parents;

(b)the nature of the Child’s relationship with each of his parents and any other relevant person; and

(c)the likely effect of any changes in the Child’s circumstances, including the likely effect on him of any separation from either parent or any other person with whom he has been living.

56While those considerations are relevant, there is an almost complete paucity of evidence from either party in relation to them. The husband argues that prior to the Child’s departure from Australia, he had a good relationship with him; the wife’s evidence does not directly address that issue, although she is highly critical of various aspects of the husband’s behaviour. The wife gives very little evidence in relation to her own relationship with the Child and the husband raises a vague assertion as to concerns about the Child’s well-being in her sole care.

57As noted above, there is no evidence before the court to support the husband’s proposal that the Child live with him on an interim basis, notwithstanding that the husband has sworn and filed four separate affidavits to date, plus a number of witness affidavits.

58Similarly, there is no evidence before the court as to what arrangements, if any, are appropriately to be made for the Child’s care by the wife if she was to return to Australia with him in the short term.

59Those factors, when combined with the fact that the Child has been in the primary care of the wife since his birth, and has lived with her in Country A since November 2015, mean that the consideration set out in s 60CC(3)(d) assumes singular importance at least on an interim basis.

60As already observed, the order sought by the wife for the discharge of the earlier order for the return of the Child to Australia is itself a parenting order. While s 60CC(3)(m) permits the court to take into account, as an additional consideration, any other fact or circumstance that the court thinks is relevant (and the circumstances of the wife’s retention of the Child in Country A and the husband’s allegations as to her conduct since accordingly may be considered) in my judgement those factors do not outweigh those considered above.

61While I am not unsympathetic to the husband’s circumstances, and understand his desire to retain whatever benefit may be derived from the existing return order, I cannot on the evidence before me find that the continuation of that order is in the Child’s best interests. I propose, therefore, to discharge the order.

62I emphasise for the benefit of both parties and those advising them, including in relation to any proceedings in Country A, that my decision in that regard does not in any sense indicate a view as to either the merits of the husband’s application pursuant to the Abduction Convention, the merits of the wife’s defence to that application or what may be the merits of the competing parenting applications of the parties in the long term. It may very well be that a proper consideration of tested evidence at trial will lead to a conclusion that orders should be made compelling the wife’s return to Australia with the Child, or a conclusion that the Child should live in Australia with the husband. Those conclusions cannot, however, be drawn on the basis of the limited and untested evidence presently before me.

63In drawing the conclusion I have, I do not ignore the submissions made by Senior Counsel for the husband by reference to the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Means for Protection of the Child (“the Protection Convention”) and in particular his submissions referring to Article 7 of that Convention (as to the retention of jurisdiction by the country in which the child was habitually resident immediately prior to the relevant removal or retention) and Article 23, pursuant to which the measures taken by the authorities of a Contracting State are to be recognised by operation of law in all other Contracting States, subject to certain conditions. I have carefully considered those submissions, but they do not alter my conclusion.

The sale of Property A

64As noted above, the parties agree that orders should be made on an interim basis for Property A, owned by the wife, to be sold. They disagree as to who should control the sale and as to the distribution of the proceeds of sale in due course. Each seeks to receive $100,000.00 on an interim basis from the sale; neither proposes that the other receive any funds.

65In his Form 1 application filed on 3 November 2016, the husband sought a variety of final orders by way of alteration of property interests. None of those orders made any reference to Property A.

66In the same application, the husband sought interim orders appointing him as trustee for the sale of Property A and for the proceeds of sale remaining after the payment of agent’s fees and the like, and the amount required to repay the loan secured by mortgage on the property, to be disbursed as follows (errors as they appear in original):

…

c)to pay the Applicant Husband the sum of $100,000 in a manner to be characterised subsequently in respect of costs to be incurred in relation to his Application under the 1980 Hague Abduction Convention to secure the return of the child born [in] 2016 to Australia; and

d)in the event of any balance remaining it be deposited into Clairs Keeley Law Practice Trust Account until further order of the Court.

67It will be seen, therefore, that the basis upon which the husband initially sought an interim payment from the proceeds of sale of Property A was to meet costs to be incurred in relation to the proceedings under the Abduction Convention. No other basis was articulated.

68The husband’s application has not been subsequently amended. While he has at various stages filed (or tendered in court) minutes of orders sought at particular hearings, none of those minutes, nor the two separate applications in a case filed, purport to alter the basis upon which the interim payment is sought.

69The wife’s Form 1A response filed on 7 March 2017 does not in any way particularise the final orders sought by her by way of alteration of property interests and spousal maintenance.

70Her interim application in relation to Property A is expressed in the following terms:

71That the wife be at liberty to sell the real property [address A], with the proceeds of the sale to be applied:

(a)first, to pay all commissions and other costs of the sale;

(b)secondly, to discharge the mortgage and any other encumbrance affecting the real property;

(c)thirdly, the sum of $100,000.00 to be transferred to the wife; and

(d)the balance to be held on trust by Westminster Lawyers, pending further Court Order or an agreement between the parties in writing; save that the funds may be applied to discharge any capital gains tax liability arising as a result of the sale.

72The proposed payment of $100,000.00 to the wife is not in any sense characterised by the terms of her application. Given that she is the sole registered proprietor of the property, it may reasonably be inferred that the intended characterisation of the payment is by way of interim property settlement.

73Again, the evidence in support of that aspect of the wife’s application is extremely limited. In her affidavit filed on 7 March 2017, she sets out her understanding of the present interests of the parties in real property; in broad terms, that understanding coincides with that expressed by the husband in his documents. Otherwise, the affidavit contains very short evidence as to what the wife would assert as being her initial financial contributions, and otherwise seeks to explain the wife’s actions in withdrawing $75,000.00 from the account of the business operated by the husband, and the use to which she put those funds.

74The wife offers no evidence as to the basis upon which she would say an interim order for payment of funds to her should be made, and in response to the husband’s application simply says that the funds are no longer required by him as he has received a grant of legal assistance from the Australian Government in relation to the proceedings under the Abduction Convention. She asserts also that the relevant bank has reimbursed to the husband the $75,000.00 which she unilaterally withdrew.

75In his affidavit filed on 3 March 2017 the husband admits that the grant of legal assistance he has received from the Australian Government “only covers proceedings relating to my Hague Convention Application in [Country A]”. He points out that the grant does not cover his legal fees in Australia, which are significant; that does not, however, address the fact that his application for an interim payment of funds is directed solely to the costs associated with the proceedings in Country A. He admits that the bank has reimbursed the sum of $75,000.00 and says that he is using it to operate his business.

76In short, neither party has presented sufficient evidence to justify the interim distribution of funds which they seek, particularly in view of the basis upon which the respective distributions are sought.

77I propose to make orders for the sale of Property A, and the retention of the net proceeds without distribution to either party pending further application.

Control of the sale of Property A

78Neither party addressed this aspect of the dispute in any detail in their affidavit material. The husband’s initial proposal that he control the sale was predicated on the fact that (at the time) the wife was, on his case at least, avoiding participation in the proceedings and evading service. Subsequently, he argued that he should control the sale both because he is present in Australia and because of his concern that notwithstanding any orders the court might make, the wife might appropriate the proceeds of sale.

79The wife offers no evidence in relation to those issues. Her affidavit filed on 21 February 2017 simply recites the orders she seeks in that regard and argues that the husband no longer has need of the funds sought by him.

80Given that the husband is present in Australia and can liaise more efficiently with a selling agent and the bank, I propose to appoint him as trustee for sale of the property on the condition that he not accept any offer less than the value attributed to the property by the wife in her affidavit material other than with her consent, or an appropriate order of the court.

81In that way, any concern of the husband as to the wife delaying or frustrating a sale is met. Similarly, any concern the wife might express at a perceived risk that the husband might sell the property at less than an appropriate value is met.

Wife’s chattels

82The wife sought an order that the husband make available for collection by her nominee “all of her personal belongings, clothing and jewellery within 14 days…”.

83The wife offered no evidence in support of that aspect of her application. Neither party made any submissions in relation to it.

84That aspect of the wife’s interim application will be dismissed.

Costs

85The husband sought an order that the wife pay his costs associated with his efforts to serve her with documents, in the sum of $13,121.76.

86It is unnecessary for the purposes of these reasons to set out the law in relation to the making of costs orders. It is sufficient to observe that at this stage at least the allegations by the husband as to the conduct of the proceedings to date by the wife are untested and in dispute. It may be, as the husband argues, that the wife has intentionally evaded service and delayed the proceedings. It may also be, as the wife contends, that there have been miscommunications between the solicitors leading to delays which might otherwise have been avoided.

87The resolution of that dispute is not possible in the context of an interim hearing. That resolution will weigh heavily in a proper determination of the question of whether the wife should be made to pay, or contribute to, the husband’s costs; his allegations as to the conduct of the proceedings by the wife, if proven, would strongly suggest that circumstances exist which would justify an order for costs.

88The appropriate course, therefore, is for the husband’s application for costs in that regard to be reserved to the trial Judge.

Proposed orders

89Subject to any submissions as to form, I propose to make the following orders:

1.Pursuant to regulation 17 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) the Court declares that the retention by [Ms Franco Amon] (“the Respondent”) of [the Child], born [in] 2015 in [Country A] on or about 19 February 2016, was wrongful.

2.Both parties have permission to use documents from these proceedings in any other proceedings initiated or defended by them in relation to the issue of the return of the child to Australia or otherwise in proceedings initiated or defended by them in relation to the child’s care.

3.[Mr Baxter] (“the Applicant”) is appointed the Trustee for sale of the property at [address A] in the State of Western Australia, being more particularly described as Lot [XXX] on Deposited Plan [XXXXX ] and being the whole of the land in the Certificate of Title, Volume [XXXX], Folio [XXX] (“[Property A]”) on the following trusts:

(a)to appoint a licensed real estate agent of his choice to market the property for sale;

(b)to offer the property for sale by Private Treaty at an asking price recommended by the agent, but in any event no less than $300,000.00;

(c)to accept any offer equal to or greater than $300,000.00;

(d)to accept any offer less than $300,000.00 only by agreement with the wife or pursuant to a further order of the court;

(e)to do all things necessary to facilitate completion of the sale, including withdrawing at his expense the caveat lodged by him on [Property A]; and

(f)to disburse the proceeds of sale as follows:

(i)in payment of agent’s fees, commissions and other expenses associated sale;

(ii)in payment of the amount required to discharge the loan secured by mortgage against the property; and

(iii)in payment of the amount then remaining into a controlled moneys account to be opened in the joint names of the solicitors on the record for the parties in the proceedings in this Court.

4.The parties have liberty to further apply in relation to the disbursement of the proceeds of sale of [Property A] on reasonable notice, such notice not to be given until after the sale of the property has been effected.

5.The order contained in paragraph 5 of the Orders made by Magistrate Osborn on 23 December 2016 be and is hereby discharged.

6.The Applicant’s application for costs incurred in the service of process on the Respondent in [Country A] stand adjourned to the trial Judge.

7.All outstanding interim and interlocutory applications otherwise be and are hereby dismissed.

I certify that the preceding [89] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
7 July 2017